Last week I discussed Advanced Directives, which are important to have in place in the event of a medical emergency. This week’s topics are part in parcel, which are the Last Will & Testament (“Will”) and trust agreements (“Trusts”). These documents let your heirs know how you want your assets distributed once you’ve passed away.
The Difference Between a Will and a Trust
So, what’s the difference between a Will and Trust? Well, a Will, while created while you’re alive doesn’t take effect until after you’ve passed away. Further, the assets are subject to probate proceedings. However, a Trust once created and funded usually (a trust can actually be created in a Will, so that’s why I use the term “usually”) take place during your lifetime and the assets will not pass-through probate. There are several different types of Trusts but the two I’ll be discussing today are the revocable and irrevocable trusts. (Jarrell, July 2022.)
What Happens if You Don’t Have One of These?
If you don’t create a Will or a Trust during your lifetime, after you pass away you are considered to have died “intestate”, which just means that you’ve died without a Will. (Kagan, November 2020.) When a person living in Florida dies intestate their assets “pass to the decedent’s heirs” (F.S. 732.101). But that’s a bit tricky…What if your father passed away who was survived by his wife, who is also your mother? What if his wife wasn’t your mother?
Whether or not his spouse is also your mother and whether or not she has children that are not descendants of your father actually makes a difference!! In Florida:
If the decedent (the person that passed away intestate) has no descendants (children) all assets pass to the surviving spouse (“Spouse”);
If the decedent had a Spouse, who is the parent of all descendants, the Spouse gets all of the assets;
If the decedent had a Spouse who is not the parent of all of the decedent’s descendants, the Spouse gets half of the assets; and
If the decedent’s Spouse has descendants that are not descendants of the decedent, the Spouse gets half.
(F.S. 732.102.)
If there is no surviving spouse or surviving descendants of the decedent, then the estate assets go to the surviving parents, if alive. If not, then the line of succession starts to go through all of the closest related family members. For instance, if the parents are no longer living, then next up are brothers/sisters. If there are no living brothers/sisters, then the statute provides for who is next in line. But if there is a living parent, then they get the entire estate, and the siblings are not entitled to anything. (F.S. 732.103.)
If there is no one in the line of succession as prescribed for in Florida Statute § 732.103, then the assets shall escheat, which allows the State to take ownership of the Estate’s assets. (Keaton, November 2020.)
If only there was a document that could be created that told everyone how assets should be disbursed upon someone’s death… 😊 Oh, wait…
This is why estate planning is so important!!! Who do you want to get your assets? If you don’t have any living relatives do you really want them to go to the government…?
Wills
Technically, under Florida law (F.S. 732.502) a Florida Will does not need to be notarized. In order to make a Florida Will valid it simply needs to be:
Signed by the testator (someone who died with a Will) (Merriam-Webster, 2022); and
In the presence of two witnesses, who must also sign in the presence of the testator and the other witness.
That said, if your Will is self-proving it will need to be signed in the presence of a Notary Public.
Q. What is a self-proving Will?
A. This is an affidavit that is attached to the Will and serves to authenticate it. (Moore, 2022.)
Q. Why do I need a self-proving affidavit?
A. Without a self-proving affidavit a probate court will require the testimony of at least one of the witnesses before the Will can be admitted.
So SELF-PROVE!!!
Caveat: Normally in Florida, the Notary Public can act as one of the witnesses to do a document but not on a self-proving affidavit because the Notary Public is stating that the Testator and the witnesses signed in the Notary’s presence. Since a Notary cannot attest to their own signature, the Notary cannot be one of the witnesses.
Trusts
I mentioned earlier that I would discuss types of Trusts: revocable and irrevocable. Both of these types of Trusts, by law, should be executed in the same manner as a Will (F.S. 736.0403(2)(b)). Again, that means a Notary Public is actually not required to sign these documents but it is common practice to have them signed by a Notary Public, in the same manner as the self-proving Will. (Baskies, 2020.)
Just for informational purposes, since I brought them up, the difference between a revocable trust and irrevocable trust is that a revocable trust can revoked during the Settlors (someone who creates a Trust) lifetime (upon the death of the Settlor it automatically becomes irrevocable) and the Settlor can act as a Trustee. An irrevocable Trust cannot be revoked once created/funded and the Settlor cannot be the Trustee.
There are benefits and drawbacks to both, which I won’t get into here because I’ve already taken up enough of your time. If you’re truly interested in learning more about the different types of Trusts and how they can benefit you and your estate planning needs, I would suggest that you speak with a Florida estate planning attorney.
On my website I have available a standard Florida Last Will & Testament and a Trust Agreement form available for purchase. The price includes my services as a Notary Public for these documents (if you need me to provide witnesses there is an extra charge for that but I honestly recommend that you get witnesses that you know and trust for these types of documents; that said, your witnesses cannot be beneficiaries to these documents), which can be done via Remote Online Notarization (RON) or I can come to you, whichever you prefer. Also, I will say it below, since it’s at the bottom of all of my blogs, but I want to reiterate it here…I am not a licensed attorney and cannot give legal advice. These forms are standard forms. If you have any questions regarding these forms or would like something more detailed or tailored to your specific needs, you should seek the advice of a Florida licensed attorney. I can provide you with a referral upon request. Should you purchase one of these forms and then opt to have an attorney review or redo the form, the Notary service remains and will be transferred to the new or updated form.
* As a way to stay organized, in my online store I also carry a “Swan Song” digital planner, which is a way to keep your estate planning wishes all in one place. Once completed, you can print it out and leave it someplace safe but easily accessible for those that will need it when the time comes. This digital planner is being sold in my store for $15 but you can access it for FREE by signing up to get emails when I drop a new a blog.
If you have any questions, please do not hesitate to contact me:
Shannon “Ivy” Colón, Florida Notary Public
Certified Remote Online Notary
NNA Certified Notary Signing Agent (background screened)
(561) 325- 8579
Please note that the above was provided for informational purposes only and should be construed as legal advice. I am not a license attorney and cannot give legal advice. If you have legal questions, please contact a Florida licensed attorney. I can provide you with a referral if you need one.
Will vs. Trust: What’s the difference? Jarrell, Matthew. https://www.investopedia.com/articles/personal-finance/051315/will-vs-trust-difference-between-two.asp. (July 25, 2022)
What does intestate mean? Kagan, Julia. https://www.investopedia.com/terms/i/intestate.asp. (November 20, 2020
Florida Statutes & Constitution. Florida Statute 732.101. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.101.html.
Florida Statutes & Constitution. Florida Statute 732.102. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.102.html.
Florida Statutes & Constitution. Florida Statute 732.103. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.103.html.
Escheat. Kenton, Will. https://www.investopedia.com/terms/e/escheat.asp. (November 5, 2020).
Florida Statutes & Constitution. Florida Statute 732.502. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.502.html.
“Testator.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/testator. Accessed October 22, 2022.
Does a Will need to be notarized in Florida? Moore, Blakely. https://ptmlegal.com/blog/does-a-will-need-to-be-notarized-in-florida. (Dated April 15. Accessed October 22, 2022)
Florida Statutes & Constitution. Florida Statute 736.0403(2)(b). http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0736/Sections/0736.0403.html.
Revocable Trust Execution Requirements: A Notary is Not Needed. Baskies, Jeff and Mary Korr. https://rpptl.org/uploads/2020-04-24-%20RPPTl%20COVID-19%20-%20Execution%20of%20Revocable%20Trust%20and%20Notary.pdf. (April 24, 2020)
What Is a Settlor of a Trust? LegalZoom.com. https://www.legalzoom.com/articles/what-is-a-settlor-of-a-trust. (Accessed October 22, 2022)
Comments