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Demystifying Trusts by Matthew Shapiro, Volusia County Attorney

Trusts are powerful estate planning tools that offer individuals flexibility, control, and peace of mind when it comes to managing their assets and providing for their loved ones. In Florida, understanding the distinctions between revocable and irrevocable trusts, as well as living and testamentary trusts, is crucial for individuals seeking to establish an effective estate plan. In this blog, we’ll explore these differences, their implications under Florida law, and the unique benefits they offer.

Revocable vs. Irrevocable Trusts:

A revocable trust, also known as a living trust, allows the grantor (the person who establishes the trust) to maintain control over the trust assets during their lifetime.  In Florida, revocable trusts are governed by the Florida Trust Code, Chapter 736 of the Florida Statutes. The grantor can modify or revoke the trust at any time during their lifetime, making it a flexible estate planning tool. Assets placed in a revocable trust avoid probate upon the grantor’s death, allowing for efficient distribution to beneficiaries. However, revocable trusts do not provide asset protection from creditors or potential lawsuits, as the grantor retains control over the trust assets.

An irrevocable trust, once established, cannot be modified or revoked by the grantor, except under limited circumstances and with the consent of all beneficiaries.  Assets transferred to an irrevocable trust are typically removed from the grantor’s estate for tax and probate purposes, offering potential estate tax savings. Irrevocable trusts may provide asset protection benefits, as the trust assets are no longer considered part of the grantor’s estate and are shielded from creditors. However, establishing an irrevocable trust involves relinquishing control over the trust assets, making it a more permanent arrangement that requires careful consideration.

Living vs. Testamentary Trusts:

A living trust, as mentioned earlier, is established during the grantor’s lifetime and can be revocable or irrevocable. In Florida, living trusts are commonly used to avoid probate, provide for incapacity planning, and maintain privacy by keeping estate matters out of the public record. Assets transferred to a living trust are managed by a trustee appointed by the grantor, ensuring seamless management and distribution according to the trust terms. Living trusts offer flexibility, allowing the grantor to retain control over the trust assets while alive and providing for a smooth transition of assets upon death or incapacity.

A testamentary trust is created through the grantor’s will and comes into effect upon the grantor’s death.  Testamentary trusts are often used to provide for minor children, individuals with special needs, or beneficiaries who may not be capable of managing assets on their own. Unlike living trusts, testamentary trusts do not avoid probate, as they are created as part of the probate process and become effective only after the grantor’s death. Testamentary trusts offer flexibility in tailoring distribution instructions and providing for specific needs or circumstances of beneficiaries outlined in the grantor’s will.

Understanding the differences between revocable and irrevocable trusts, as well as living and testamentary trusts, is essential for individuals seeking to establish an effective estate plan in Florida. While revocable trusts offer flexibility and probate avoidance during the grantor’s lifetime, irrevocable trusts provide asset protection benefits and potential tax advantages. Similarly, living trusts allow for seamless asset management and distribution, while testamentary trusts offer tailored solutions for specific beneficiary needs outlined in the grantor’s will.