Wills, Trusts and Probate Frequently Asked Questions

Why is it Important to Have a Will?

While a will may not be a document people are eager to draft, wills provide an individual with the ability to control what happens to their assets after death. Wills are quite beneficial to both the individual and their beneficiaries, as wills clearly define the final wishes and distribution of assets in a written, legal manner. It is strongly recommended that everyone have a will, regardless of the size of the estate.

What Is The Difference Between A Revocable Trust And An Irrevocable Trust?

An important benefit of a revocable trust is the ability to remove assets and terminate the trust at any time without any penalties. With an irrevocable trust, even if a person names themselves the trustee with access to the assets, they will not have the ability to regain ownership of the assets. All assets will be owned by the trust.

What is Probate?

Probate is the administration process performed by the court when handling an estate on behalf of a deceased party. The state looks at the assets left by the deceased and creates an inventory which will be used for tax purposes and distribution to any beneficiaries. The state of Florida has two types of probate administration: Formal and Summary.

What Is a Guardianship?

If a person becomes incapacitated and can no longer manage their affairs, the court may hold a supervised process known as a guardianship to name an individual or individuals to handle affairs for them.  The incapacitated person is designated as a “Ward,” the individual assigned to handle the Ward’s financial affairs is designated as the “guardian of the property,” and the individual assigned to handle the Ward’s personal affairs is designated as the “guardian of the person.”

What is a Living Will?

A living will is a legal written document expressing the author’s wishes in particular medical situations, such as a critical injury and/or terminal illness.  Living wills may be used to instruct medical professionals with regard to the usage of various life-support methods.  These methods are meant to sustain (or possibly extend) the life of the person, but will not improve the health of the person on their own.  A living will lets a person clearly state their wishes in regard to being kept alive by machines such as ventilators and heart-lung machines, and to make the decision if they want intravenous devices used to feed them (“tube feeding”).
Living wills only apply in situations where using such treatments as life-support machinery may keep a person alive for a short while, and not using the treatments would result in the person’s death.  A living will would not impact treatment in medical situations not involving life-threatening conditions (such as a routine medical procedure).  The decision as to whether a person is in a situation where they would need life-support methods is made by the medical professionals in charge of the person’s care.

What Does a Will Do?

Wills are important because (among other things) they will give instructions regarding distribution of property and designate a guardian for minor children. An equally important question is, What will a will *not* do?

What Are Living Trusts, Revocable Trusts, And Revocable Living Trusts?

To minimize confusion, all of these terms mean the same thing and can be used interchangeably.  For the sake of simplicity, the term “living trust” will be used here.  Living trusts are created during a person’s lifetime for the purposes of handling financial matters such as ownership of property and control of assets.  A person can create a trust and transfer all ownership of assets to the trust itself, naming themselves as the “trustee.”  This still gives the person full access and decision-making abilities in regard to all assets now owned by the trust.  The person can name a “successor” trustee, so that in the event of their death or disability, access to all assets owned by the trust will be granted to the successor trustee.  Married couples can also name themselves “co-trustees” so that they can share access to the assets within the trust.

If someone dies intestate, what does that mean?

The term intestate is used to describe a person who has died without leaving a will.

How Are Living Trusts And Wills Different?

Where a will is a tool for handling assets after a persons death, a living trust is more useful to a person while they are still alive. It allows them to manage their property and assets while alive, and to name a trustee to handle the assets and the care of the original trustee should the original trustee become incapable of handling their own affairs through death or disability.

Can I Draw Up My Own Trust and/or Will?

It is legal for a person to draw up their own will or trust, but if there are any mistakes in the document or if it is not created in accordance to local laws, it may be declared invalid and very expensive problems may result. As with any legal document, it is strongly suggested to consult an attorney for its drafting and continued maintenance.

Can I draw up my own trust and/or will?



Request a Consultation

Request a consultation by filling out the form below, or call us at 855.780.9986. We have over a dozen offices located in Orlando and across Central Florida. We’re happy to answer any of your questions.