Like I mentioned above, only assets that are titled under your own individual name, which do not have a beneficiary designation or a survivorship provision pass through Florida probate court.
If your main goal is to avoid probate court, so long as you have assets that will not pass through probate then you will not need a trust. However, if you have assets that will pass through probate, the a Florida revocable living trust will be a good idea.
When thinking of whether to create a Florida revocable living trust, we have to think about the purpose of creating a revocable living trust.
For example, a bank account which has a proper beneficiary designation will not pass through Florida probate. However, upon your death, the beneficiary will receive all the funds in that account. This might not be the best thing, specially if the beneficiary is a minor or someone that does not know how to manage their finances.
But most assets can be placed in the name of a Florida revocable living trust. The two assets that you must beware before you place them in a revocable trust are your Florida Homestead and Individual Retirement Accounts (“IRA’s).
Homestead has many restrictions, which I cover in this Article. But to give you a brief overview, if you transfer your Homestead to your revocable living trust and pass way prior to your child’s turning 18 years old, then that will be an invalid devise of the Homestead and it will pass according to the Florida Homestead Statute and not according to the provisions of your revocable living trust.
In addition, if you have a spouse, you need your consent of your spouse before transferring the Homestead into your trust, and she will also need to sign a spousal waiver.
Usually, is best to leave your Homestead as it is unless you have not married and have no minor children. There are other options that can also be looked into like a “Lady Bird Deed.”
IRA’s usually are also left untouched. They are a creature of federal law and in order to be placed into a trust strict requirements must be followed. IRA’s are outside of the scope of this article, but I will prepare another article telling you more about this topic. Make sure to subscribe to my Newsletter to find out more.