Many Floridians believe that if they create a living revocable trust, it will ensure they can avoid probate court. This makes sense, and it is completely understandable why someone may wish to avoid going to court. However, a revocable trust may or may not accomplish all of your goals. The dedicated team at The Law Offices of Matthew J. Jowanna, P.A. is here to help with all your probate and estate planning needs. Keep in mind that many of the template forms you can find online are simply just that – forms and templates. While the correct type of document can be critical, it is the skilled guidance of an attorney that helps you make good choices while preparing and customizing your final affairs.
Understanding What A Trust Actually Does
A revocable trust creates a separate legal entity, much the way a corporation is separate from its shareholders. You, as the creator, will be the “trustee” while you are still living and able to handle your own affairs. Upon your death, a “successor trustee” steps in and takes over the responsibility of collecting assets, paying creditors, and distributing assets in accordance with the trust. Generally, trust assets are not part of your probate assets; therefore, they do not pass through a probate estate or require a court proceeding. This can be a good thing because probate is public. Anyone can look at the public filings and know a lot about your family’s assets and liabilities.
Creditors’ Claims
While having a revocable trust can be a great decision for many people, it is worth noting that under Florida law, the state’s nonclaim statute essentially provided creditors with up to two years to assert a claim. While it may seem counterintuitive, many people who leave assets in a trust may still wish to open a probate estate in order to limit claims against other estate assets. For instance, by opening an estate in probate court and giving notice to creditors, the two-year limitation period on creditors bringing claims can be reduced to just three months. Notice is given directly to known creditors, such as credit card companies, lenders, and so forth. However, under the Florida Probate Code, it is also necessary to publish notice for unknown creditors.
Keep in mind that probate is designed to protect creditors and heirs from being defrauded. When someone dies, the court must ensure that all parties involved are proceeding as required, paying debts and distributing assets properly. By reducing the number of assets in your estate, and placing them in trust, you can remove a lot of future headaches. However, as you can see, there are still reasons why someone might want to probate an estate.
For help deciding what is best for you and your estate planning needs, give us a call. We can help you form a specific estate plan that suits your particular needs.
