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Will Vs. Living Trust: Which Is Best For You?

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When you are looking to plan your estate, many people’s natural inclination is to stick with a simple will, thinking it will be sufficient to dispose of your assets. Very often, they are correct – but not always. In addition, there are options for estate planning that can offer more flexibility in terms of making changes and continuing to live in the manner to which you are accustomed. It is a good idea to consult with an estate planning attorney on whether a will is sufficient for your purposes, or whether an instrument like a living trust would be a better fit.

Similar Yet Different

Wills and living (also called ‘revocable’) trusts have some similarities, in terms of their function; both do not activate until the passing of their creator, and both transfer property to the deceased person’s intended beneficiaries. The mental capacity to create both is the same; in other words, to create either, one must be of sound mind, and able to communicate their intentions. It is also possible for the testator/settlor (creator of a will or trust) to continue to use most of their assets during their lifetime, even if they are earmarked to be disposed of in a will or trust.

Perhaps the fundamental difference between the two, however, is that a will usually must be probated in order for assets to be able to go to the specified heirs, while assets placed in a living trust are exempt from probate. The establishment of a living trust means that assets are no longer in the settlor’s name, which means they are not reachable by probate creditors. This is, as one might imagine, a big draw for many people and their families, given that Florida probate can last anywhere from weeks to years.

Both May Be An Option

There are positives and negatives to choosing either a will or a trust, but since every person’s situation is different, the decision as to which is best for you and your family will differ as well. A revocable living trust is a good option for those who have extensive assets, particularly those with assets in other states, as well as for those who want to keep their estate details private. In addition, a revocable living trust is much more difficult to contest in Florida than a will; as long as a person files a valid objection to a will within 3 months, they are generally permitted to contest it. A will is best for simple estates with few potential pitfalls as to distribution or ownership of assets.

A trend that has been happening more and more in recent years is to have a revocable living trust in place, and then to create what is known as a “pour-over” will. A pour-over will is a simple will that disposes of a person’s assets that, for whatever reason, were not made part of the trust. This can be helpful to many because without any kind of will, a person is said to have died intestate, which allows a probate court to distribute assets according to a specific formula because the deceased did not effectively bequeath those assets themselves.

Call A Naples Estate Planning Attorney

If you have questions, concerns or just want to set up a complimentary consultation to discuss your personal legal issues in a confidential setting, contact James R. Nici, the Managing Partner of Nici Law Firm, a Naples estate planning attorney with almost 30 years of legal experience.  This may be the first step toward ensuring all is how you want it to be going forward. Contact our offices today via our website, or on the telephone at 239-449-6150, to schedule your complimentary consultation.


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