Living Trust: Lifetime Protection & Probate Avoidance

The Living Trust is a popular estate planning tool in Florida. Potential benefits include:

Keep the Court Out of Your Personal Affairs

Unlike a will, which is a death instrument only, the Living Trust also protects you while you're alive by allowing you to appoint someone to handle your business affairs in the event you become incapacitated.  This minimizes the chances of guardianship and court involvement in your personal affairs.

Probate Avoidance

A Revocable Trust can spare your family the trouble and expense of dealing with the Probate Court.  This is of particular importance to Florida residents, since Florida's probate system can be cumbersome and family members often live at great distances.  

Maintain Family Privacy and Discourage Challenges

The Living Trust is a private document and need not be filed with the court. That means another advantage: privacy. Your dispositions are not public record, as they are with a will. That also reduces the possibility of your plan being challenged by any disgruntled heirs.

Estate Tax Advantages

Note: Congress allowed the federal estate tax to lapse effective Jan. 1, 2010. It is believed that Congress may act before the end of 2010 to reinstate the tax, possibly making it retroactive to Jan. 1, 2010. In 2011 current law provides for the federal estate tax to return with an exclusion of $1million and a tax rate of 55%

For couples with taxable estates, the Living Trust can offer additional advantages. A Credit Shelter Trust, (also known as the AB Trust or Bypass Trust), allows couples to pass more tax- free money to beneficiaries by taking full advantage of each spouse's estate tax exclusion. When the first spouse dies, his or her assets equal to the amount exempt from estate taxes -- currently $3.5 million  -- flow into a Credit Shelter Trust. The survivor has access to the income from that trust, but not the principal.  When the survivor dies, the money from the Credit Shelter is not included in the survivor's estate, thereby allowing twice as much money to be passed tax-free to heirs. 

The Successor Trustee

When you establish a Revocable Trust as part of your estate planning, you (the grantor, also known as the trustor) make yourself the trustee of the assets you place in the trust. You are still free to sell, trade and give away the assets as you see fit. You may also change the terms of the trust, or revoke it, at any time. But once you pass on, the successor trustee(s) you've designated take control of your assets, and distribute them in accordance with the provisions of your trust.

In certain circumstances you may find it preferable to appoint a third party rather than a relative as successor trustee. For example, you may believe that time constraints or questionable integrity will interfere with your adult child's ability to handle the job. Also, if your adult children do not get along, choosing a third party can be preferable to choosing just one child, which may inflame sibling rivalries, or to appointing all your children as co-trustees and somehow hoping that they can work together amicably. A bank, broker or Accredited Investment Fiduciary™ may serve as a third-party trustee.  

See Frequently Asked Questions About Living Trusts

Contact The Karp Law Firm for all you Florida estate planning needs. We're here to help!