In Florida many people recommend a revocable trust as a means of avoiding probate. The truth is though, that revocable living trusts do not avoid probate in the state of Florida and today we’re going to look at this topic in a little more detail to give you a better understanding.
Why a Revocable Trust Doesn’t Avoid Probate in Florida
Firstly, let’s address the term “revocable trust”. What is a revocable trust? What does it mean to have a revocable trust?
A revocable trust is a type of living trust. A living trust is an legal document which puts your assets into a trust for you during your lifetime should you become unable to manage them and transferred to your beneficiaries upon your death by a representative whom you name.
When writing a living trust you must name everything that you want to be protected and managed within that trust. If you neglect to name something, it won’t be covered by that trust.
So what is a revocable vs. irrevocable trust?
A revocable living trust is a trust in which you may, at any time, change your mind as to whether you want this trust to exist or the items that you want to be included in your trust.
In comparison, an irrevocable trust is one that, once written, cannot be revoked. When you put items into an irrevocable trust you are locking them into that trust and they are no longer considered in your possession.
Why would you consider any type of trust?
In theory, if you have a living trust, when you put your belongings into the trust entity they are no longer considered yours. They are property of that trust entity and are also no longer considered to be part of your estate when you die. This is interpreted as there being no need for probate since your belongings did not technically belong to you at the time of your death.
So why doesn’t a revocable trust avoid probate in Florida?
Because, in the state of Florida a revocable trust is liable for the debts of the decedent. Essentially, when you die with a revocable trust in place, the trust then becomes responsible for your debts. Additionally, a two year statute of non-claim means that your trust entity remains responsible for your debts for two years following your death.
What happens if the designated trustee responsible for managing your trust after your death distributes the items in your trust before the two year statute is up? Well, if this happens and the trust no longer has the money or assets to pay off your debts, the trustee becomes liable for your debts themselves until the two year statute period has expired.
There is, however, an exception to this rule. If probate is brought and if the estate is advertised the trust is only liable for debts for up to 30 days from the first date that the estate was advertised.
Because of the two year statute that rules that a revocable trust is responsible for the debts of the deceased this means that many Florida estates go into probate simply to speed up the property distribution process by taking care of any creditors before the two year period is up. Due to how common it is for a revocable trust to go to probate in Florida because of this two year waiting period, it simply doesn’t make sense to create a revocable trust for the sole purpose of protecting your loved ones from having to go to probate.
What About Irrevocable Living Trusts?
Irrevocable living trusts do not have a two year statute like the revocable living trust does which means that they do not present the same type of problem for the trustee upon your death.
Do You Need Help Creating a Revocable Trust or Irrevocable Trust?
If you’re in Florida around the St. Petersburg area and you need someone to help you to create a revocable trust or irrevocable trust for your estate, call Weidner Law at 727-954-8752. With close to twenty years of experience in representing clients in foreclosure actions, consumer and commercial finance transactions and civil litigation, Weidner Law has the knowledge and experience to help you create your living trust no matter what plans you have in store for your estate.
