A Living Trust – What it is, and why you need it.

If you own property and want to make sure your property is passed on to the person you choose – you need a Living Trust. We're now offering a Living Will, and an Advance Health Care Directive at no charge, when you hire us to prepare your Living Trust documents. With a Living Trust you can rest assured and later on rest in peace, knowing that your loved ones are going to receive the property you promised them – without having to wait for a judge's order to make it so. For more information please call – 800-515-0496.


What is a Living Trust?

You can cancel your living trust at any time. You completely control when and if you create, change, or dissolve your trust. When you transfer property to a Living Trust you can sell it, rent it out, improve it, or do anything else that you want to do with the property, because although the Living Trust now owns the property, you as Trustee continue to control it. A Revocable Living Trust, also called an Inter Vivos Trust is a type of ownership, designed to ensure that your assets and property are swiftly placed into the possession and control of your designated heirs.

How is a Living Trust different from a Last Will and Testament?

A Living Trust is used along with a Last Will and Testament. A special type of Will which is often used is known as a “pour over will”. In a pour over will, the will maker includes language that leaves all assets and property to the Living Trust. Even though most of the property will be transferred to the Living Trust soon after forming the trust, the pour over will accomplishes additional tasks.

Sometimes people create a trust, transfer property into that trust, but later on acquire more property. When someone dies, and some of the property was not transferred into the trust, then the property that was not in the Trust must go through probate. So when there is language like – I leave everything I own to XYZ Living Trust – the chance of inadvertently omitting property cannot happen. Everything means everything. Likewise, some types of property, unlike vehicles or real estate, do not have a document to prove title. It is difficult for untitled property to be transferred into a Living Trust during a person's life, so simply stating that everything else that a person leaves behind is left to their Living Trust keeps it simple.

How does a Living Trust avoid probate? And what is probate anyway?

Probate is the legal process in which a deceased person's property is distributed to that person's designated heirs. Many people believe that having any sort of a will avoids probate – but this is a huge blatant myth encouraged by probate attorneys everywhere. A will does not avoid probate at all, and is not designed to do so. A will makes your wishes known – that's all. When someone dies without a will there is a specific order of who inherits and how property and assets are divided. When someone dies without a will, that person's wishes are unknown, so the law must be applied to the order of distribution of assets. The decedent may not have wanted to leave anything to certain relatives, but failing to leave a will at all can easily make this happen. If there is no will at all, the diamond ring that the decedent meant to give to her niece Sally, is instead handed over to her daughter Jean – after probate that is.

With a clear and valid will probate can take anywhere from six months to two years. Dying without a will, called dying intestate, slows down the probate process more. Dying with a will makes the probate process faster and more clear, only because the decedent's wishes are known. Either way, the designated heirs cannot take possession or control of their rightful property until the judge says so.

When someone sets up a Living Trust, the assets are transferred from the person's name (we'll call that person Jane Smith) to the name of (Smith Family Living Trust) the Trust. The property is transferred during the person's life. For example, in her Living Trust Jane Smith names Jane Smith as the Trustee of the Smith Family Living Trust. Jane Smith then names another person or persons as Successor Trustees. Adult children are often chosen as Successor Trustees.

When Jane Smith dies, since she already set up the Smith Family Living Trust, her property is immediately in the control of her Successor Trustee. Or, if Jane Smith did not die, but was temporarily incapacitated the property goes into the temporary care and control of her Successor Trustee, she resumes her role as Trustee as soon as she is able.

For more information about creating a Living Trust, please contact the Florida Association of Legal Document Preparers directly - 800-515-0496 - or visit our site and browse the Member Directory which includes of listings of our member legal document preparers throughout Florida.