What is a Florida Revocable Living Trust, and Does it Avoid Probate?

Many people are surprised to learn that revocable living trusts do not allow them to avoid probate entirely.

Revocable living trusts in Florida are legal documents that hold property. During your lifetime, you can control the assets in the trust and can sell, transfer, or gift them as you wish. You can also add property to the trust as you acquire new assets. After you pass away, the property in the trust is distributed according to your wishes.

Revocable living trusts are separate legal entities from the settlor, or the person who created the trust. As such, they can help your loved ones avoid the probate process after you pass away. However, revocable living trusts do not necessarily allow your loved ones to entirely avoid the probate process.

Benefits of Avoiding Probate

Although probate is not inherently bad, there are many reasons people want to avoid it. Probate can be a long and expensive process. Creditor claims, taxes, court fees, and other expenses can also deplete the assets in the estate, meaning there is less property available to beneficiaries after probate is closed. Most revocable living trusts become irrevocable after a settlor passes away, and because they are separate legal entities, any property within the trust is not subject to probate.

How to Fund a Trust

Funding a trust means transferring property into the trust. This is the only way to ensure that the trust, and all property within it, avoid probate. There are many ways to do this, depending on the type of asset you want to transfer to the trust. For real estate and vehicles, you must retitle a vehicle or the deed to real estate into the name of the trust. For bank accounts, you typically must complete forms with the appropriate financial institution. It is important to speak to an attorney who can advise on how to transfer property into a trust.

Only property that is in a trust is protected from the probate process. If someone passes away without transferring property into a trust, those assets may still be subject to the probate process.

Using a Pour-Over Will to Avoid Probate

Overlooking assets when transferring property to a trust is more common than people think. To ensure that your loved ones can still avoid probate for property left out of a trust, you can create a pour-over will. A pour-over will is a specific type of will that is created alongside a trust to cover any property that is not transferred into the trust during the settlor’s lifetime. Although the property may still have to go through probate to transfer it into the trust, the probate court does not oversee the distribution of the assets.

Our Probate Lawyer in Florida Can Draft Your Documents

At Brian K. McMahon, P.A., our Florida probate lawyer can provide the legal advice you need and draft the necessary documents to ensure you and your family are protected. Call us now at 561-658-1789 or fill out our online form to schedule a free consultation and to learn more about how we can help.