Will vs Trust?

Most of us are aware of the terms ‘will’ and ‘trust’ as legal devices used to pass on your assets and property to your heir or beneficiaries. Both will and trust, are estate planning tools meant for distribution of property among beneficiaries. However, the chief difference between the two is that whereas a will comes into effect only when you die, the trust becomes effective as soon as it is created.

What is a will?

Florida Will lawyerA will is a legal document, created and signed by an individual, in the presence of witnesses, which lays guidelines for his property’s distribution after his death. It helps you define the details of your assets and name the beneficiaries whom you wish to benefit from them. The will also offers you the freedom to choose an executor who would manage the allocation of your assets and property after your demise. In the event of the absence of a will, the court has the right to appoint and administrator who would take charge of the distribution of our property. The will also allows you to specify a guardian to raise your children after your death. It is advisable to make a will for your children even if you are still a young parent. It helps appoint a guardian for them in the event of your untimely death, when they are still minors.

If a person dies without creating a will, he is said to have died ‘intestate’. In such cases the court decides upon the beneficiaries for the property and how it will be distributed among them as per the state laws. If an individual, who has already written down a will, is mentally or physically incapable of supervising his financial assets, the court has the right to appoint a guardian who would take charge of managing it for him.

After the death of an individual, his will is administered through a probate proceeding established by the state laws. The probate is a set of laws and proceedings that governs the procedure of execution of the will with the help of a lawyer or an attorney.

What is a trust?

It is a legal device, wherein an individual or a company is named as a trustee that takes care of, and manages the assets for the beneficiary. A trust mainly comprises of three parties namely the grantor, the trustee and the beneficiary. The grantor is the person who creates the trust for his own property and assets. A trustee holds and supervises the property for the grantor for the benefit of the beneficiaries. The beneficiary is the one that gets the benefits of the trust created by the grantor. Some states offer the provision to the grantor of naming himself as the trustee.

Unlike a will, the trust does not require to be administered through the probate process. In addition to this, if the grantor is unable to manage his assets, the trustee has complete right over its supervision without the involvement of court.

There are plenty of Law Firms in Florida that provide sound legal advice on the laws applicable to these will and trusts. If you live in in Volusia County, New Smyrna Beach, Port Orange, Daytona and surrounding areas, and are looking for legal solutions you may check out the website https://www.simmslawfirm.com/.

To contact Florida attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

Florida Probate Law

FL Probate LawThe probate is a process supervised by the court, which deals with transferring the property of the deceased to its legal heir. As per law, the assets are first used to pay the expenses of the probate proceedings, then to pay off any outstanding debts on the decedent and the balance is then distributed among his heirs or beneficiaries.

The probate process varies from state to state. Florida too has its specific probate rules that define the guidelines for the process in the state. There are three ways in which you can file a probate in the state of Florida.

Transferring assets without probate

In case the deceased left behind a very small fortune, the beneficiaries are allowed to inherit the property without any probate proceedings. If the beneficiary has paid all of the final expenses of the decedent such as final illness and funeral costs, he has the right to get reimbursed for the same from the deceased property, provided the two qualifications are met:

  • The decedent’s property does not involve any real estate.
  • The fortune left by the deceased is not being claimed by the creditors for paying of any outstanding debts and is not exceeding the amount of the final expenses paid by the beneficiary.

To avail the reimbursement, the beneficiary is required to fill a ‘Disposition of Personal Property without Administration’ form that is available on the websites of several circuit courts of Florida. You are also required to submit itemized receipts and bills corresponding to the medical expenses that you have made in the final 6 months of the decedents life and also for his funeral.

Transferring assets by Summary Administration

The beneficiary is qualified for this type of probate, if the decedent had died at least two years back or the value of the probate estate (excluding the non probate property) is not more than $75,000.  The non probate property can be distinguished as:

  • Assets that are attributed to a living trust.
  • Property jointly held by a couple, such as a joint savings account, or a house that had shared tenancy by both of them.
  • An asset that has already been designated to the beneficiary for example a life insurance policy.

The law requires the beneficiary to fill up a ‘Petition for Summary Administration’ form and testify that there are no outstanding debts against the property.

Transferring assets through Formal Administration

A regular probate proceeding involves the beneficiary filing a claim petition to the deceased property, in the local circuit court. The court issues ‘Letters of Administration’ to the representative of the estate. The Florida probate rules state that the beneficiary is also required to hire a lawyer or an attorney unless he is the one and only beneficiary of the property. The property is then distributed as per the clauses in the will left by the decedent. However, in the event of the absence of a will, the Florida intestacy law has the right to determine how the property would be distributed among the beneficiaries.

Florida as a state has also set out statutory fee scales for the lawyers involved in the proceedings of a probate, making it easier for the people to estimate the legal expenses of such a proceeding. For proficient legal advice in Volusia County, New Smyrna Beach, Port Orange, Daytona and surrounding areas, visit https://www.simmslawfirm.com/.

To contact Florida attorney Debra G. Simms, P.A. in Port Orange or New Smyrna Beach, FL please call 877.447.4667.

Contact Us

Port Orange Office:
Prestige Executive Center
823 Dunlawton Ave. Unit C
Port Orange, FL 32129
Local: 386.256.4882
Toll Free: 877.447.4667
New Smyrna Beach Office:
629 N. Dixie HWY
New Smyrna Beach, FL 32168
Local: 386.256.4882
Toll Free: 877.447.4667