FLORIDA REVOCABLE TRUST: an overview

Many Florida residents, or Florida citizens, create a revocable trust, also called a Florida living trust as a part of their estate plan. This is a trust which you create and control, which will manage the assets which you place in the trust during your lifetime and which will also dispose of your wealth upon your death. Typically, a person who creates a revocable trust will also serve as the trust’s sole trustee during life and as long as you are still able to serve in that role. You may or may not have co-trustees who serve along with you as trustee. When you no longer are able or willing to serve as trustee of your Florida revocable trust, successor trustees will take over for you.

So, in Florida, as we age, sometimes our bodies hold out, and physically we are strong, but mentally, advancing old age does not let us handle all of our business and financial affairs like we once did. If we are unable to handle your business affairs, whether we just need a little bit of help because we’re slowing down, or if dementia or something else has caused us to become not competent, a trust can hold all of our property for us. The trustee will administer the trust according to what we write in the trust. A Florida revocable trust can be a great alternative to a full-blown guardianship which requires court supervision.

Typically, a revocable trust will state that during our lifetime the trustee shall distribute money only for our benefit. Although, sometimes, many creators of revocable trusts also want their wife or husband taken care of, if they are still married and living together. In that case, your trust should permit, or instruct, the trustee to distribute trust funds to your spouse.

A Florida revocable trust avoids Florida probate upon the death of the trust creator, but the assets which you place in the trust, like all of your assets which you own at your death, are subject to the estate tax. Luckily, Florida does not have a state estate tax. Also referred to as the “death tax”, or, and “inheritance tax”, the estate tax taxes a US citizen, or resident alien, on the value of all assets which you own at the time of your passing.

A Florida revocable trust may be changed at any time as long as the creator of the trust, also called a trust “settlor”, is competent, and changes it in writing, according to Florida trust law. To have a valid trust amendment , the trust amendment must be in writing, signed at the end of the trust amendment, and must be signed in the presence of two witnesses, who also sign as witnesses in your presence: all at the same time. When we change a revocable trust, we call that an “amendment” to the trust. Sometimes we change merely one or two provisions of a Florida revocable trust, or sometimes we want to make many changes to the Florida revocable trust. When we want to make many changes to a Florida revocable trust, or, rewrite the trust in its entirety, we sometimes call that a “restatement of trust.” Over time, people may make numerous changes, or amendments, or restatements to your Florida revocable trust. It is not uncommon, for example, for people to change their revocable trust by leaving an inheritance for someone under a trust, or disinheriting someone entirely. Many times people will amend their revocable trust to appoint a new successor trustee, or to appoint additional successor co-trustees. You or your trust lawyer should keep the original trust document, and all amendments, in a safe place.

One of the great things about a Florida revocable trust is that it’s relatively easy to change or amend. If you want to terminate it, you can do so by expressing your intent to terminate the trust and one other act. This may be done either in writing, with two witnesses, or you may simply say in front of witnesses “I revoke and terminate my Florida revocable trust” and then destroy it, such as by ripping it up.

Your revocable trust becomes irrevocable upon your incapacity or upon your death. If you are incompetent, or incapacitated, your successor trustees can gather your assets which are not in the trust, and place them into the trust so that they may be managed for your benefit. Many times, however, many Florida residents will title their assets in the name of the revocable trust, such as by opening brokerage accounts, or bank accounts in the name of the revocable trust. A revocable trust may be a good alternative to a full-blown, court supervised, guardianship. If we’re unable to manage our property, our business or financial affairs, sometimes a guardianship may be appropriate. However there are costs and other factors which turn off some Florida residents to a guardianship. Having your Florida probate attorney, one who writes wills and trusts, prepare a power of attorney, a revocable trust, and healthcare documents, like living wills, and Florida advanced health care directives, can be a great alternative to a guardianship. The whole idea here is that you can, while you are competent and capable, make important personal and financial decisions for yourself should you later become incapacitated or incompetent. You are deciding now, who you want in charge to help you later, should you need the help. By setting up your legal paperwork carefully, you can appoint people who you trust, and who you want to help you, should you become incapacitated or incompetent. These people will make personal and business decisions for you under Florida estate planning documents such as a Florida power of attorney, advanced health care directives and your revocable trust.

When a guardianship is discussed, you will often hear the term “lesser restrictive means” or “lesser restrictive alternative”. Florida courts generally will not permit a guardianship to be created or to go forward if there is a lesser restrictive alternative to a guardianship. A Florida revocable trust, a living will, healthcare documents, and a power of attorney are a lesser restrictive alternative to a guardianship. Since we are living longer than ever before, and because, sometimes our mind, the ability to think and decide, and our cognitive abilities, will falter before our bodies do, consider speaking to your estate planning attorney about how to avoid a guardianship.

In the end, a Florida revocable trust can make a lot of sense. It is not terribly expensive, it’s flexible and it can protect you and your property. It can also be the wealth vehicle which leaves money and property to whomever you want, just like a will. And unlike a will, a Florida revocable trust is a private document that you do not have to file with a court or the county clerk. While our firm does not prepare or write revocable trusts or wills, we are very familiar with them and we handle disputes, trust litigation and appeals of matters involving Florida revocable trusts, trustees and beneficiaries’ rights. If you don’t have a Florida revocable trust, it’s worth the time to speak to a Florida trust attorney about one.