Do I need to create a trust if I already have a will?

Some individuals have a will and also have a revocable living trust to distribute assets. Often they are the trustee of the revocable living trust and their children or family members may be the beneficiaries. Why would somebody do this? Won’t their assets pass under the will when they die? The answer is yes, but it may take a while. Using a revocable living trust alongside a will can avoid delay before administration of the estate can proceed as a result of probate proceedings. If assets pass under a will a personal representative has to gain access to the decedent’s assets. They do this by getting letter of administration from the court. This should happen quickly but sometimes the process can take longer. For example, in some counties, such as Palm Beach County, it can take less than a week to have a personal representative appointed and armed with letters of administration. Other counties, such as Miami-Dade, frequently take longer. Sometimes, however, regardless of the county, the delay can be lengthy and estate assets can become at risk.

The revocable living trust allows the successor trustee to take over immediately upon the death of the original trustee. Even if a beneficiary desires to contest the appointment of a successor trustee, more likely than not, the trustee can continue to administer the trust during the litigation process. The successor trustee, without court approval or court appointment, can make distribution of assets, pay claims of creditors, and otherwise proceed to administer the trust.

If you are creating a revocable living trust it is important to remember the assets in the trust are not out of your reach. Generally, the trust creator may withdraw any part or all of the trust assets by written direction to the trustee. Further, the trust permits the creator to revoke or amend the trust at any time. However the trust does not protect the assets from creditors of the trust creator. The beneficiaries of the settlor’s trust also do not have any protection against the creditors of the settlor. If creditors need to be paid after the death of the trustee, the assets in the trust may be used to satisfy the creditor’s claim. The attorneys at Chepenik Trushin can help with creating trusts, funding those trusts and any other estate planning needs. Please feel free to call (305) 981-8889 for an initial consultation.

Florida Practice, Estate Planning, West’s Florida Practice Series, 2001-2012 Edition

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