What is a Florida Revocable Trust?
A revocable trust in Florida is a legal fiction, meaning that you and the trust are the same things as long as you’re alive. As you file your income taxes, you file the assets listed in the living trust as you would other assets that give you an income.
The effect of having your assets in a living trust is that it changes the asset’s title for legal purposes. Instead of having the property under your name, they acquire the living trust’s name. Lawyers from an Orlando corporate and real estate law firm can guide you on how to create a revocable trust that meets the requirements.
What Requirements Must a Revocable Trust Meet to Make It Executable?
According to Florida Statute 736.0703(s)(b), the testamentary aspects of a revocable trust are invalid unless the trust settlor executes the document. Your trusts lawyers in Orlando can guide you on the following formalities required for creating a revocable trust, which are similar to those for the execution of a will:
The Trust Maker or Testator Must Be of Sound Mind
The testator or the trust maker is the person that establishes the living trust and determines the provisions of the agreement. As the testator, you must meet the following conditions:
- Have the capacity to create a trust
- Indicate an intent to make a trust
- Have definite beneficiaries
- Have duties to perform
- Have a separate trustee and beneficiary
In Florida, anyone 18 years or older with a sound mind can create a living trust as long as they have the mental capacity to do so when the document is executed.
What It Means to Be of Sound Mind
Being of sound mind implies that you generally understand:
- The nature and extent of the property to be distributed
- The relationship between you and those who would naturally claim a benefit from the trust
- The purpose of the testamentary trust.
The testamentary act comprises the provisions of distributing the trust property on or after your death. The better your understanding of these factors, the less the likelihood that the trust will later be challenged in court.
Signing and Witnessing the Trust
The Probate Code in Florida requires wills to be signed in the presence of two attesting witnesses. The two must also sign the will in the presence of each other and the testator. The testator must also sign the document at the end and subscribe their name.
Another person can do this in the presence of the testator and the witnesses under the testator’s instructions. The same requirements apply in the case of a revocable trust. The court will deem it invalid if you have no witnesses or they don’t sign the document. The document is also invalid if you don’t append your signature.
A revocable trust must always have a trustee to serve and own the assets you transfer to it during your lifetime. You could be the trustee or could name a co-trustee to manage the property as your direct them for your benefit while you’re still alive.
Upon your demise, the trustee is generally responsible for distributing the trust property to the named beneficiaries. Alternatively, they may continue holding and managing the property on behalf of your beneficiaries. The document goes a long way in avoiding the appointment of a guardian if you become incapacitated.
The lifetime beneficiary of a revocable trust is often the testator. So, you will continue to have lifetime access to income and principal of the living trust during your lifetime. You also must designate a death beneficiary who will benefit from the remaining principal and income once you die.
Assets in a Revocable Living Trust
Only assets in your name that don’t have a beneficiary designation or a survivorship provision pass through Florida probate court. If you have assets that are likely to pass through probate when you die, it’s advisable to have a revocable living trust.
For example, a bank account with a proper beneficiary designation will not pass through probate, as the named beneficiary will receive all the funds in the account. This may not be a good idea if the beneficiary is a minor.
You can place such assets in a revocable living trust instead. Your Orlando trusts attorneys can provide in-depth guidance on the property to list in a revocable trust.
The Trust Must Be Revocable
A revocable trust implies you can alter or cancel the document’s provisions depending on your wishes. During the life of the trust, you can distribute the income earned, and only after your death does the property gets transferred to the trust beneficiaries. The tool offers flexibility and more control over the assets you hold in a trust.
You can appoint a trustee to distribute your assets to the beneficiaries upon death. During your lifetime, it remains private and only becomes irrevocable when you die.
Unless a court expressly states otherwise, it cannot be modified, terminated, or amended in your absence.
A Skilled Trusts Attorney Helping You Meet the Requirements of a Revocable Trust
When creating a revocable trust, you must meet the requirements that make the document executable. A lot goes into creating this estate planning tool, considering it differs from an irrevocable living trust and other estate planning documents. It would be advisable to engage the expertise of experienced trust attorneys in Orlando to avoid mistakes that would cost you later.
Our Orlando real estate, corporate law, family law, and personal injury law firm hosts knowledgeable trusts attorneys who can oversee the process of creating estate planning tools. Estate planning is one of your most important decisions, and you shouldn’t gamble when choosing a professional to guide you. Contact us to schedule a FREE case evaluation.