The death of a loved one is an emotional time for many families, and having to negotiate the complex probate process in order to settle a will creates added and unnecessary stress during an already difficult time. For this reason, many residents in the Florida Keys are turning to trusts as a means to dispose of their property at their deaths. Seeking the advice of an experienced Key West probate and trust litigation attorney will ensure that you receive the guidance necessary to dispose of your assets quickly and correctly.
Creating a Living Trust
Creating a living trust, or inter vivos trust, requires an agreement between a grantor, or the person creating the trust, and the person administering the trust for the benefit of the beneficiaries, known as a trustee. Florida law allows the same person to act as both a grantor and a trustee during the period of the grantor’s life. Because it is a “living trust,” a revocable trust can be changed or amended at any time during the grantor’s life.
Once a trust document, naming the grantor, the trustee, and the beneficiaries, is created, the grantor must transfer all property, including cars, real estate, etc., into the trust. In creating a trust, the grantor must adhere to all of the requirements mandated for the correct creation of a will. In Florida, this means that the grantor must sign the document in the presence of two witnesses and a notary public.
Objecting to a Trust
Revocable trusts can be challenged on a number of different grounds. Some of the most common include:
- Improper execution. If the grantor failed to sign the document or did not have the requisite number of witnesses, his or her heirs can dispute the trust’s provisions.
- Lack of capacity. This usually requires a showing by the person’s heirs that at the time the trust was created, the grantor was elderly, extremely ill, or taking prescription medications that altered his or her mindset.
- Undue influence. This happens when a person in a position of trust pressures the grantor to provide for them more than the grantor would have otherwise. This is seen most often when the grantor has diminished capacity, so individuals such as family, nurses, and caregivers have a greater influence over his or her decisions.
Advantages of Revocable Trusts
There are a variety of advantages to creating a revocable trust, including:
- Continuity of management in the event that the grantor becomes disabled;
- Avoiding the probate process, which can be costly and time-consuming;
- The availability of assets to beneficiaries immediately after death; and
- Flexibility in naming out-of-state administrators.
However, in some instances, trustees cannot avoid the probate process due to creditor claims. For instance, trusts are liable for up to two years after the grantor passes away. This can be avoided if the trustee opts to submit the estate to probate and appropriately advertises the probate. In these instances, the trust is only liable for three months following the advertisement.
Key West Probate and Trust Litigation Requires Expertise
Creating a will or revocable trust can ensure that your assets distributed properly after your death. Navigating probate law can be tricky and retaining an experienced and diligent attorney will help give you peace of mind. If you are interested in creating a trust, please contact the Key West asset protection attorneys at the Silver Law Group for an initial consultation. We serve the entire Florida Keys along with the most of Monroe and Miami-Dade Counties.