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Exploring the Distinctions Between Wills and Trusts Under Florida Legal Framework

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Tampa Probate Lawyer / Blog / Legal / Exploring the Distinctions Between Wills and Trusts Under Florida Legal Framework

Exploring the Distinctions Between Wills and Trusts Under Florida Legal Framework


Frequently, when working with our clients on their estate planning needs, we encounter significant misconceptions about what is truly essential. Within the realm of estate planning, two paramount documents emerge: the will and the trust. Each serves a distinct purpose but plays an indispensable role in ensuring the precise execution of your wishes regarding asset distribution following your demise. In this blog post, we delve into the disparities between a will and a trust, drawing upon Florida law as our guiding reference.

Florida Last Will and Testament

A last will and testament, commonly referred to as a will, is a legal document that lists the intended distribution of your assets upon your passing. It also empowers you to designate a guardian for any minor children and appoint an executor to oversee the disbursement of your assets. In Florida, adherence to Florida Statute 732.502 mandates that a will must be in writing, bearing the signature of the testator (the individual creating the will) alongside those of two witnesses. Furthermore, the testator must be 18 years of age or older and of sound mind. 

Importantly, a will can be altered or revoked at any point prior to the testator’s death, provided the testator retains sound judgment and is free from duress. A will lays the foundation for the asset distribution via a Florida Probate proceeding. Although having a will alone will likely require an  estate probate, it fundamentally transforms the estate’s distribution by diverging from default succession rules, called intestate succession, and appointing a Personal Representative to manage the case.

Florida Trust: A Closer Look

A trust is a legal instrument facilitating the transfer of asset ownership to a trustee, who subsequently administers and disburses the assets in accordance with the trust’s stipulations. A trust may be established during one’s lifetime (known as an inter vivos trust) or posthumously (a testamentary trust). A notable advantage of a trust lies in its capacity to circumvent probate, the formal process of distributing an individual’s assets following their demise. In Florida, probate can be protracted and costly, making the creation of a trust an efficient means to conserve both time and money for the designated beneficiaries.

Privacy stands as another asset of a trust when juxtaposed with a will. A will transforms into a public document upon its court filing, whereas the contents of a trust remain confidential. This confidentiality proves especially advantageous for individuals with high-profile or substantial net worth, or for those wishing to maintain privacy concerning their asset division post-mortem.

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