Each situation, or each individual situation needs to be addressed to determine whether or not it’s worth it to establish a trust to avoid probate. It’s desirable often times to avoid probate because the process takes a minimum of nine months, and you, of course, have to go to court and hire an attorney to represent your interest. But, your individual situation needs to be analyzed by an experienced estate planning attorney to determine whether a trust or a will is right for you. (silence)

Some typical documents that can be found in an estate plan are of course a will, a trust, a durable power of attorney, a healthcare surrogate, a living will, and a preneed guardian. There are other documents depending on the complexity of your situation.

A trust is an entity usually created by an attorney for the purposes of avoiding probate. A trust, unlike a person, cannot die so if your assets are held in the name of the trust essentially the trust never dies so probate is never necessary. It’s important to determine with an experienced estate planning attorney whether a trust is the right vehicle for you to use.

The primary benefit of a trust is to avoid probate. A probate is the judicial supervision of distributing someones assets after they’ve passed away. People will use a trust to get out of court and to pass along their assets with little to no judicial supervision.

Funding a trust is a very important part of the trust process. The trust itself is the vehicle that’s used to protect your assets. Once a trust has been created, we must title all of your property into the name of the trust. For instance, if you own real estate, your attorney will be preparing a deed that deeds the property from your name personally into the name of your trust. The step of funding your trust is an area that’s very important because the trust doesn’t accomplish what the trust is designed to do if your assets are not held in the name of a trust.

If you own property with another person in Florida as joint tenants with rights of survivorship, if one of the co-owners passes away, the other owners automatically inherit their share of the property. It does not pass to their heirs or relatives, but rather passes to their co-tenants on the property.

Tenants in common means that you each have an undivided interest in the property. For instance, if there are three owners of property, each owner has a one-third undivided interest in the property. If one of the owners were to pass away, their one-third interest would pass to their heirs or to their beneficiaries under a will.

If you’ve done estate planning with a non-attorney, it is important to consult with an estate planning attorney to review the documents, to make sure they’re legally sound, and that they actually put your plan into effect.

It’s important to have a will even if you already have a revocable living trust. We often refer to these as “pour over wills”. The trust itself must be funded to be effective. So if you later acquire assets that you forget to title in the name of the trust, the pour over will will pour those assets over into the trust, if necessary.

You must have the original will in the state of Florida for it to be a valid will. There are other ways of establishing a lost or destroyed will, but the law presumes that if you cannot find the original will, that the person that created the will intended to destroy it or revoke it.