Do I Need A Trust?

Estate Planning Lawyers Serving Brevard County

Many people prefer trusts to wills because of several advantages that go far beyond avoiding the cumbersome process of probate. If you are wondering whether this type of estate planning structure makes sense for you, the experienced Brevard County attorneys at Cantwell & Goldman can help you make the decision and guide you through the process of creating a trust if needed.

Is a Trust Right for You?

Trusts not only serve to keep your assets from going through probate, but if they are structured properly they can also save you and your family taxes at your death. They are written documents that can be created to manage one or more assets during your lifetime and distribute them upon your death. The maker of the trust is either called a "settlor" or a "grantor." The person who manages its assets and makes investment decisions is called the "trustee."

The assets in a revocable trust can include anything you own, including your bank accounts and real property. A homestead property can, in some cases, lose its ability to be exempted from creditors if the title is held in a revocable trust. An experienced attorney can help you determine whether it is appropriate to put your home in your trust.

Title to any assets you want to place in the trust must be transferred to the trust in a process called "funding the trust." Any assets that are not included in the trust, either unintentionally or by design because of the tax consequences, will still have to go through probate. It may be important to also draft a will that will transfer probate assets to the trust upon your death.

In a revocable trust, the settlor and the trustee can be the same person. A revocable trust is valued by many people because you can modify it during your lifetime as long as you don't become physically or mentally incapacitated.

If you become incapacitated and you were the trustee for your revocable trust, the successor trustee you have named can manage your assets. You may be able to avoid going through the judicial process for appointment of a guardian. When you die, the trustee will handle any claims against your estate as well as payment of taxes, and he or she can distribute assets to beneficiaries.

In some cases, other types of trusts may be appropriate. For example, if you are disabled or a loved one is severely disabled and you want to provide for him or her without removing his or her eligibility for public assistance, a special needs trust may be appropriate. Alternately, if you have a substantial life insurance policy, it may be appropriate to create an irrevocable life insurance trust to own the policy and avoid significant estate taxes.

Consult a Cocoa Attorney Skilled in Wills and Trusts

The primary reason to create a trust is to protect your assets. The trustee will have to do significant work to manage the trust properly and may need a fee to administer it. In Florida, creditors have two years from your death to file claims against your estate, which means the trustee may not want to distribute the trust's assets until that time has passed. Moreover, trust assets are only protected from creditors' claims in certain circumstances, such as when there is a spendthrift provision. For some clients, it is important to utilize both wills and trusts. To find out if a trust is right for you, consult the Cocoa lawyers at Cantwell & Goldman. Contact us at 866-583-9129 or via our online form.