Serving South Florida since 1982

Board Certified Elder Law Attorney

By the Florida Bar and National Elder Law Foundation

Florida Bar celebrates it's 25^th Anniversary. Click here to read why this certification matters to you.

West Broward
Fort Lauderdale area
(954) 726-6602

Boynton - Delray
  (561) 496-0077

Wills and Trusts

What's the difference between a will and a trust? Doesn't having a will avoid probate? Why would I want a living trust?

These are questions that regularly come up in our office. A will is a legal document that provides for distribution of your probate estate at your death. Probate assets are those owned by a person in his or her own name alone with no beneficiary, without being "payable on death" or "in trust for" or in a living trust. A will must be verified by the Probate Court before it can be enforced and the assets distributed to the heirs. Because probate is a court proceeding, it is time-consuming and expensive.

Assets that are jointly held, in trust for someone, or in a living trust avoid probate. Beware the pitfalls of joint ownership. It may be difficult to have the property returned on request to its original owner during his or her lifetime. Joint assets may also be subject to the control of the new owner and the new owner's creditors. Joint ownership between spouses won't eliminate probate but will only delay it until the death of the surviving spouse. Joint ownership can also have adverse income and estate tax consequences.

A living trust is an enormously flexible and useful vehicle. Assets of the owner(s) are retitled into the name of the trust. The original owner(s) becomes his or her own trustee and maintains control of the assets, which are not subject to probate. To avoid guardianship, the owner appoints a successor trustee to manage the trust property if he or she becomes incapacitated.

Among its many benefits, a living trust

• avoids probate delays and expenses

• represents opportunity for professional asset management

• permits distribution over a longer period of time

• allows prompt transfer of management upon disability

• avoids guardianship

• reduces the likelihood of will contests

• coordinates distribution of assets through one vehicle

• is especially important with out-of-state real estate

• provides maximum privacy

• is inexpensive and easy to set up and maintain

• prevents court control of inheritance by minors

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