Trusts are well-known legal tools used to designate property upon death and protect the interests of heirs and beneficiaries. Florida statutory rules permit the creation of living trusts, allowing you to transfer property to the name of the trust during your lifetime while maintaining control over them.
Keep reading to find out how to create a Florida living trust.
Florida Living Trusts – Understanding the Concept
A trust is a legal arrangement in which the person creating the trust (referred to as trustor or grantor) transfers the ownership of property to a trustee (fiduciary) for the benefit of one or multiple beneficiaries.
Essentially, a living trust is a revocable trust that permits the trustor to modify, amend, or even terminate the agreement in whole or part. Hence, during this/her lifetime, the trustor has the authority to:
- Decide which terms to include in the trust instrument
- Determine which assets will be used to fund the trust
- Select the person who will serve as the trustee
One of the peculiarities of living trusts is that they permit the trustor to designate him or herself as the trustee, naming a successor trustee in the event of death or incapacity. Hence, up until the trustor’s passing, he or she can waive nominal ownership of the assets held in trust while maintaining control over them.
Florida Living Trusts – What Assets Should One Transfer to a Living Trust?
In Florida, most assets may be transferred to a living trust, except for a few types with certain restrictions. Accordingly, it is possible to fund a living trust using:
- Real estate
- Cash accounts
- Bank accounts
- Non-retirement investment accounts
- Brokerage accounts
- Non-qualified annuities
- Stocks and bonds (if held in certificate form)
- Tangible personal property (e.g., jewelry, books, antiques, artwork, etc.)
In most cases, no homestead property may be transferred to a trust (unless the trust agreement has specific language to avoid the statutory restrictions within state law). Most retirement accounts, such as IRAs and 401(k)s, are not eligible for placement in a living trust.
Ultimately, it is crucial to work with an expert legal advisor to identify whether using a specific asset to fund a living trust is the best decision.
How to Create a Living Trust in Florida – Full Overview
The first step to creating a living trust is to sit down with a Florida trust attorney to discuss the terms and provisions that will define the agreement. In this sense, it is crucial to determine:
- Whether to create an individual or shared living trust
- Which assets one should include in the trust
- The person who will serve as the trustee (or successor trustee)
- The individuals that will be designated as the beneficiaries of the trust
Once an in-depth discussion has been had and an individual assessment is madeto identify the main factors involved in the trust’s structure, the next step is to create the trust instrument.
The trust instrument is the legal document that originates the agreement. The preparation of the document requires accurate writing, leaving no room for vague language or imprecise terms.
Under Florida law, a valid trust instrument must follow the same formalities required in the execution of wills. It is essential to fund the trust by transferring the title of assets to it. Otherwise, the trust will not have a material purpose, hence becoming an invalid trust.