making a will and living trust by a florida lawyer what documents to bring

by Myrtie Stiedemann Jr. 6 min read

Doesn't require any official terminology or standardized documentation. Florida does not require any particular forms, phrasing, or language in order to make a will valid as long as it's executed with the formalities required by law. Must be signed by the testator.

Full Answer

Does Florida require a will or a living trust?

How to make a will in Florida?

Who can witness a will in Florida?

May 04, 2022 · Understanding a Living Trust in Florida. The basic parts of a Florida living trust include: Revocable. The living trust can be changed or revoked at will by the trust grantor. Trustmaker, Grantor, or Settlor. This is the person that establishes the trust and designs the provisions of the living trust agreement. Trustee.

How do I set up a living trust in Florida?


Do I Need A Living Trust in Florida?

The main advantage of making a living trust is to spare your family the expense and delay of probate court proceedings after your death. But do you...

in Florida, If I Make A Living Trust, Do I Still Need A Will?

Yes, you always need a will. A will provides a backup plan for any property that doesn't make it into your trust. For example, if you acquire new p...

Can Writing A Living Trust Reduce Estate Tax in Florida?

It depends on the kind of trust you create. A simple probate-avoidance living trust has no effect on federal estate tax. However, more complicated...

How Do I Make A Living Trust in Florida?

To make a living trust in Florida, you: 1. Create the trust document, which says who will inherit trust property and names you as trustee (the pers...

Benefits of A Florida Living Trust

The two most often cited advantages of a living trust are: 1. avoiding court administered guardianship in the event of the grantor’s incapacity and...

Asset Protection and Living Trusts

Some people mistakenly believe that living trusts provide asset protection for the trustmaker. In fact, a living trust provides the trustmaker no a...

Tax Issues in Living Trust Administration

Living trust planning changed in 2013 when the American Taxpayer Relief Act of 2012 went into effect and then again with the 2017 Tax Cuts and Jobs...

Do You Need Attorney to Prepare Living Trust?

There are inexpensive, boiler plate trust agreements available on the internet and at office supply stores. Many people try to save money by using...

What is a revocable trust?

A revocable living trust has two estate planning benefits. First, a living trust avoids guardianship in the event of the grantor’s incapacity. The living trust agreement typically provides that if the grantor cannot manage trust property, then a successor beneficiary takes over the administration of trust property for the grantor’s benefit.

What is a living trust in Florida?

A living trust is a trust that a Florida resident makes during their lifetime for their own benefit and for the benefit of a spouse and designated people after their death. Florida trusts are governed by Chapter 736 of the Florida statutes. The chapter is known as the Florida Trust Code.

What is incapacity in a trust?

Incapacity is a defined term within the trust document, and a living trust agreement should include procedures for determining the grantor’s incapacity. The incapacity provisions of a living trust permit the grantor and his family to avoid a public guardianship if the grantor becomes unable to manage trust assets.

What is a self settled trust in Florida?

A self-settled trust is one where the person who creates and funds the trust is also a trust beneficiary. Florida law unequivocally provides that a living trust that a trustmaker creates for his own benefit is not protected from the beneficiary/trustmaker’s creditors.

What is a lifetime beneficiary?

The lifetime beneficiary has full access to income and principal of the living trust during their lifetime. Death Beneficiary. The trust establishes who will benefit from the remaining income and principal of the trust upon the grantor’s death. A typical living trust created for estate planning is revocable in full or in part.

How many witnesses do you need to sign a living trust in Florida?

That is, the living trust must be signed before two witnesses and a notary. Florida recognizes the validity of a living trust created in another state so long as the trust has been properly executed under the laws of the state of formation.

How much is a stock worth when the parents die?

The parents’ estate plan leaves the stock to a child after both parents have died. The parents’ child inherits the stock with a new income tax basis equal to its $60 date-of-death value. If the child sells the same stock for $70, the child’s taxable capital gain would be the difference between the $70 sale price and the $60 date-of-death value rather than the parent’s original $10 cost basis (a $10 capital gain).

What happens if you don't have a will in Florida?

What Happens If I Don't Have a Will? In Florida, if you die without a will, your property will be distributed according to state "intestacy" laws. Florida's intestacy law gives your property to your closest relatives, beginning with your spouse and children.

How old do you have to be to make a will in Florida?

To make a will in Florida, you must be: 18 years of age or older (or an emancipated minor), and. of sound mind. Fla. Stat. Ann. § 732.501. Florida does not recognize nuncupative (oral) or holographic (handwritten) wills that are not witnessed. Fla. Stat.

How many witnesses do you need to sign a will?

you must sign your will or acknowledge it in front of two witnesses, and

What is a will called?

A will, also called a " last will and testament ," can help you protect your family and your property. You can use a will to:

How to make a will?

Decide what property to include in your will. Decide who will inherit your property. Choose an executor to handle your estate. Choose a guardian for your children. Choose someone to manage children's property. Make your will. Sign your will in front of witnesses. Store your will safely.

What is a will and testament?

A will, also called a " last will and testament ," can help you protect your family and your property. You can use a will to: leave your property to people or organizations. name a personal guardian to care for your minor children. name a trusted person to manage property you leave to minor children, and.

How to self prove a will in Florida?

To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that proves who you are and that each of you knew you were signing the will . You can do this at the time of signing your will or later. Fla. Stat. Ann. § 732.503.

What can a Florida testator do before or after a will?

Before or after executing a will, a Florida testator may create a written list of tangible personal property for use as evidence of the testator’s intended disposition of all items included in the list.

What is the percentage of a spouse's estate in Florida?

Under Florida’s Spousal Elective Share statute, a surviving spouse is guaranteed at least a 30% interest in a decedent spouse’s estate, including assets arranged to transfer outside probate.

How does a Florida trust work?

A Florida trust is created when the owner of property declares that he or she is holding that property as trustee, or when the owner transfers the property to a third party to hold as trustee, or if the owner exercises a power of appointment in favor of a trustee.

What is the legal requirement for a trust in Florida?

For a trust to be effective under Florida law, the settlor ( i.e., the person creating the trust) must actually intend to create the trust and must have sufficient mental capacity to create the trust.

How many witnesses are needed to make a will in Florida?

To be legally effective, a Florida will must be in writing, signed by the testator, and attested by two witnesses. Both witnesses must sign in the testator’s presence and in each other’s presence.

Is a testator of sound mind?

In general, Florida courts have held that a testator is “of sound mind” if he or she understands what property is subject to the will, who will benefit from the bequests, and the overall implications of executing the document.

Can a will be revoked in Florida?

Florida’s Probate Code provides that a will is revoked if it is intentionally destroyed (e.g., by “burning, tearing, canceling, defacing, obliterating”) by the testator or someone else at the testator’s direction.

What is a Living Trust?

A living trust is a type of estate management fund that the grantor creates in his or her lifetime. All of the grantor’s assets and properties are moved into the living trust so they can be inherited by beneficiaries when the grantor passes away. There are two types of living trusts and they are explained below:

Benefits of a Revocable Living Trust in Florida

Setting up a revocable trust affords you a bevy of benefits. In addition to the flexibility that it offers, it can also allow you and your beneficiaries to avoid probate. Here are some of the benefits of creating a Florida revocable living trust:

Types of Assets You Can Fund Into a Florida Living Trust

The assets that you can move to a Florida living trust are those that have value and could be tangible or intangible. Properties that are titled under your name or do not have a beneficiary or a survivorship provision may have to pass through probate. Moving these properties into a living trust can prevent them from going through probate.

Requirements of a Florida Living Trust

The most important requirement when creating a living trust is that the grantor has the capacity to create the trust. It is the same crucial element also required in creating a last will and testament. Any person 18 years old and above with a sound mind must have the capacity to create a revocable living trust at the time the document is executed.

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Hiring a legal expert to create a living trust can cost somewhere between $1,000 to $2,000. This amount doubles to up to $8,000 for joint living trusts for couples. There are also ready-to-download living trust forms on the internet that you can simply fill out.

How is a will different from a trust?

A will passes through probate and bequests become a matter of public record, whereas a trust is largely private. Bequests through a will are direct transfers of ownership, whereas a trust can provide for more regulated benefits —for instance, the grantor can specify the purposes for which trust assets can be used.

What is a living trust?

A living trust is a trust created in the grantor’s lifetime to hold title to all of the property the grantor eventually plans to pass through the trust. During the grantor’s lifetime, he or she typically serves as both trustee and beneficiary, managing the trust assets for his or her own benefit. In practical terms, there is little difference ...

When does a will take effect?

A will does not take effect until the testator passes away, whereas a living trust takes ownership of assets immediately and only the trustee and beneficiary change upon the grantor’s death. 2. If you’re married, talk with your spouse about whether you want to create a shared trust.

Can a beneficiary have a separate trust?

Determine whether any of your beneficiaries have special circumstances that may impact the terms of the trust or require creation of a separate trust. Of course, your attorney can explain the trust options and the circumstances under which a specific trust format or specific terms may be required. But, you know your loved ones.

Who decides the distribution of assets in a trust?

The grantor can also decide whether the beneficiaries will receive core trust assets, or just earnings on those assets. And, the grantor can dictate the purposes for which trust assets may be distributed, giving the trustee broad discretion or limiting distributions to particular purposes such as educational expenses.

Can a living trust be used in place of a will?

Generally, if you are using a living trust in place of a will, the trust will include property that would otherwise pass through an estate. Certain property may pass to a direct beneficiary or with rights of survivorship.

Who is responsible for managing a trust when the grantor dies?

However, the trust document names a successor trustee—and, ideally, an alternate–and successor beneficiaries. When the grantor dies, the successor trustee takes over, and becomes responsible for managing the trust for the good of the beneficiaries.

What is the purpose of a revocable trust in Florida?

There are 5 main purposes of a Florida revocable living trust: 1) avoid probate court; 2) avoid guardianship court; 3) give you control after death; 4) avoid guardianship court for minor children 5) asset protection for your beneficiaries; and 6) protection for individuals with special needs.

What is the Florida revocable living trust code?

The Florida revocable living trust requirements is governed by Section 736.0402 of the Florida Trust Code. In order to create a valid revocable trust in Florida, the following elements have to be present:

What is the fiduciary duty of a trustee in Florida?

The trustee in Florida has a fiduciary duty to you. To administer the trust according to the provisions of the trust and to follow your intent and your wishes as much as reasonably possible. If the trustee fails to abide by these requirements, he may be liable to you or the beneficiaries for breaching his or her fiduciary duties.

What is the difference between a guardian and a guardian?

There are two different type of guardians: 1) guardians of the person and 2) guardians of the property. The guardian of the person has the authority to make health care decisions on your behalf , while the guardian of the property has the authority to manage your finances. The way a Florida revocable living trust helps you avoid guardianship is ...

What is the first element of estate planning?

The element that most estate planning attorneys concentrate on is the first element, the capacity to create the trust. The capacity to create a revocable trust is the same capacity required to create a last will and testament in Florida.

How old do you have to be to make a will in Florida?

In Florida, any person 18 years or older with a sound mind may create a last will and testament. The capacity to create a last will and testament or a revocable living trust must be there at the time that the document is executed.

Can a Florida revocable trust be added to a living trust?

Upon your passing, the Florida revocable living trust becomes irrevocable and at that point, if properly drafted, asset protection provisions can be added to the living trust to protect your beneficiaries. The living trust should be drafted in a way that gives the successor trust discretion to make distributions.

What is the law in Florida that allows a will to be self-proved?

The law that allows a will to be self-proving in Florida is section 732.503 of the Florida statutes .To be a self-proving will, the will must be acknowledged by the testator (person who makes the will) and the two witnesses with a notary.

What is a will in Florida?

A Florida last will and testament, or “will,” is a formal document wherein a Florida resident directs the disposition of his property (assets) after death. A will is often used to choose the guardian of minor children in the event of a parent’s death and there is no surviving biological or adoptive parent.

What are the two types of probate in Florida?

The Florida Statutes provide two types of probate: summary probate. formal probate. Determining which type of probate to file depends on the amount and nature of property in the decedent owned and the decedent’s date of death.

How long does summary probate last in Florida?

Summary probate is also available two years after the decedent’s death regardless of the value of the decedent’s estate assets. Creditor claims expire two years after death. The summary probate rules and procedures are set forth in Chapter 735 of Florida law.

What is the first step in ancillary administration?

Just like with the regular probate procedure, the first step in ancillary administration is to appoint a personal representaive. Unlike with a Florida resident, the personal representative, or executor, of the estate does not need to be related to the deceased person or a Florida resident.

What happens if you die without a will in Florida?

If a person dies without a last will and testament, that person is considered to have died intestate. The consequences of dying intestate in Florida are explained in Florida Statute Chapter 732, Part I.

How to prepare a will?

The benefits of hiring an attorney to prepare your will include: 1 The attorney will suggest which documents are best to implement estate planning. 2 The attorney educates the client about optional provisions for a will or trust, and the attorney is available to answer questions. 3 The attorney will arrange for a proper signing of the will and related documents including the witnesses and notaries required. 4 The attorney can customize the will and accomplish the client’s individual goals and concerns.

What Is A Florida Will?

A will is a legal document created by or on behalf of the individual, also known as a testator, who states how he or she wants the assets or property distributed after death. In most cases, the testator will leave the entire estate to the surviving spouse and/or children.

Florida Living Trusts

Besides the will, another means of transferring assets to beneficiaries is called the living trust. Unlike a will, the living trust is slightly more complex to create. First, the person called the ‘testator’ in a will is called the ‘grantor’ when making a living trust.

At-a-Glance: Florida Will vs. Trust Chart

Here is a quick overview of the differences between a will and a trust.

How many witnesses are needed to sign a will?

Must be signed by and in the presence of at least two witnesses. Witnesses must sign the will in the presence of the testator, and in the presence of one another. Any competent person can serve as a witness, including a relative or a person who stands to benefit from the terms of the will. Notice that everyone must sign in the testator's presence - a witness cannot witness the signature and sign it later - everyone must sign the document in each other's presence. Also, we generally do not want peopled named in the will to act as a witness - this can create its own problem in the realm of undue influence.

What does it feel like to make a last will and testament?

Many people feel a great sense of relief after making a last will and testament, taking comfort in the fact that their loved ones will be provided for after their passing.

Why is it called a last will and testament?

It is called a last will and testament because it is the last thing you wanted done on this Earth. Do not leave it up to an on-line form - use a professional to make sure your wishes are accomplished. Going to a good estate planning attorney will help you accomplish your goals so that your last wishes are accomplished and your loved ones receive your assets.

Can a will be amended?

Can be amended or revoked. A will can be amended or completely revoked by a subsequent will or codicil —a document that provides instructions or modifications to a will. The previous will doesn't have to be revoked formally in a subsequent will or codicil, but can be invalidated solely through an inconsistency in the terms of the previous will. In order to be legal, a codicil requires the same execution formalities of a will.

Can a will be written in Florida?

Must be in writing. Florida probate courts don't allow oral declarations (nuncupative wills) or handwritten instructions from a testator without witness signatures (holographic wills) as valid wills.

Who must be followed in order for a will to be legally binding?

Each state sets forth its own procedures that must be followed in order for a will to be considered legally binding. These must be followed by the testator —the person creating the will—witnesses, and legal representatives acting as advisors in the process.

Do testators follow the law?

It's vital that testators follow the letter of the law when creating or modifying the documents in their estate plans. Without an attorney’s guidance, everything in your estate could be distributed according to Florida’s intestacy laws, as if you had never made a will at all.