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Orlando Testamentary Trust Lawyer

Offering an important tool for sustaining your family

Many of our clients come to us because they are concerned with providing for their spouses and children after their death. In addition to a valid will, a testamentary trust can ensure that your family is adequately provided for. The seasoned estate planning lawyers of Gierach and Gierach, P.A. can help you create your Orlando testamentary trust.

What is a testamentary trust?

A testamentary trust is a structure established under a will, providing for a person or team of people to manage assets for the benefit of others. A trust is comprised of three parties:

  • The settlor (sometimes called the grantor) — The settlor is the creator of the trust.
  • The trustee — The trustee is the person designated by the settlor to manage the trust assets.
  • The beneficiary — The beneficiary is the person or class of people who are designated to benefit from the trust.

The trustee of the testamentary trust may distribute capital and income between beneficiaries at his or her discretion.

The purpose of a testamentary trust

Although subject to probate, a testamentary trust drafted by an estate planning attorney from Gierach and Gierach, P.A. may accomplish the following important estate planning objectives:

  • Providing supervised distributions to children
  • Maintaining the family home for the dependent children of the decedent
  • Insuring support for a spouse of a blended family

When you decide on a testamentary trust to realize your estate planning goals, seek the counsel of a competent estate planning lawyer to help you.

Types of Testamentary Trusts in Florida

When a trust is created, property in the trust is held by a named trustee for the benefit of the designated beneficiary or beneficiaries. There are many different types of trusts which can be created for different purposes and needs. All trusts fall into one of two categories – living trusts and testamentary trusts. Learn about the difference between the two kinds of trusts below, as well as different types of testamentary trusts in Florida. For advice on what kinds of trusts you may benefit from the most, contact Gierach and Gierach, P.A. for a free consultation with a knowledgeable and experienced Orlando estate planning attorney.

The difference between Florida living and testamentary trusts

When assets are placed in trust, title to those assets is transferred as well. In the case of living trusts, also called inter vivos trusts, title to the property is transferred as soon as the trust is created, during the lifetime of the person making the trust (known as the settlor, grantor or trustor). Living trusts can be revocable or irrevocable, meaning the settlor may or may not be able to modify or cancel the trust during his or her lifetime.

In a testamentary trust, the assets (and title to the assets) are transferred into the trust at the death of the settlor. A testamentary trust is usually created as part of the settlor’s last will and testament, with a clause in the will that a certain inheritance is held in trust by the trustee for the benefit of the beneficiary, usually until the beneficiary reaches a certain age, at which time the beneficiary receives the inheritance outright. A testamentary trust can be amended or revoked at any time before death by revising or revoking the will.

Since testamentary trusts are part of the will, they are submitted to probate, unlike living trusts which take effect outside of probate. Testamentary trusts are also public documents like wills, as opposed to living trusts which are private documents that can be kept confidential. However, testamentary trusts are easier to create and less expensive than living trusts, which must be created separately from the will and meet a different set of legal and technical requirements.

Different types and purposes of testamentary trusts in Florida

A common purpose of including a testamentary trust in a will is to give an inheritance to a child, but to attach some restrictions on how or when that inheritance may be spent. In this way, a testamentary trust can help ensure that money or property you leave is used wisely and for appropriate purposes. Following are some different types of testamentary trusts commonly used in Florida estate planning.

Child’s Trust – When leaving an inheritance to your children, the child’s trust is a way to hold the property in trust for the children until they are old enough to manage the inheritance on their own. You set the age that you think is proper for them to fully receive the inheritance. By establishing separate trusts shares for each child, you can set different ages for different children according to what you think is best.

Family “Pot” Trust – In a family or pot trust, all assets are managed together for all the children. You can direct more of the trust assets to go toward a child with special needs, with the pot later divided equally when all the children reach the age you have specified in the trust.

Spendthrift Trust – This type of trust provides income to the beneficiaries without allowing them to encumber the assets in the trust or transfer their interest in the trust. This type of trust keeps assets protected from the beneficiaries’ creditors in the event the beneficiary is sued or gets divorced. Under Florida Statutes 736.0502, a spendthrift trust is valid in Florida if it restrains both the voluntary and involuntary transfer of the beneficiary’s interest.

Special Needs Trust – A special needs trust sets money aside for an individual with special needs while not making the person ineligible for government benefits. Many times, persons with special needs rely on government assistance for housing, medical care and living expenses, but these benefits are “means tested,” and receiving an inheritance could make the person have too much income or assets to qualify. Holding the property in trust for the individual keeps those assets from being counted as income.

Call a Florida wills lawyer with honesty and integrity to create your estate plan

Our probate lawyers handle a wide range of estate planning matters, including trusts, on behalf of our clients. Call Gierach and Gierach, P.A. at 407-545-5744 or (844) 431-0813, or contact us online today to schedule your free initial consultation. We also assist people from outside Florida.

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