When someone dies in Florida, the person in control of the decedent’s last will must submit the document in court with a petition for probate. However, not all assets left by the deceased person must go through probate, including any property whose title has been transferred to a trust.
There are two main types of trusts, revocable trusts, and irrevocable trusts, and both types offer multiple benefits – including probate avoidance. In this article, you will discover how an irrevocable trust may avoid probate in Florida.
Florida Irrevocable Trust – The Essentials
In essence, a trust is a legal arrangement wherein one party (referred to as the settlor or grantor) transfers the title of one or multiple assets to a trustee, who holds the legal title of the property for the benefit of selected beneficiaries.
An irrevocable trust is a trust that, unlike its revocable counterparts, in most instances cannot be changed, modified, or revoked during the trust creator’s lifetime. Then, once the trustor transfers property into an irrevocable trust, it is no longer possible to take it back.
Except under a few circumstances, a settlor has no power to modify or terminate an irrevocable trust. For instance, modifying an irrevocable trust arrangement requires the consent of all the parties involved, including a formal written agreement signed by all beneficiaries and the settlor.
Upon the setlor’s death, the beneficiaries cannot modify or revoke an irrevocable trust. In such cases, only a court order could alter or revoke the terms or provisions in an irrevocable trust agreement.
Due to the nature of this type of trust, the assets transferred to the trust automatically become trust property from the moment the legal arrangement is signed, remaining that way until the settlor’s death.
Does an Irrevocable Trust Avoid Probate in Florida? – The Verdict
Indeed, assets titled to a trust (either revocable or irrevocable) do not need to go through probate. Therefore, upon the settlor’s death, such assets can pass directly to the beneficiaries without court supervision.
In this regard, any assets titled solely in the decedent’s name are subject to probate in Florida. This way, these assets cannot be inherited until the probate process is completed, which can take months, or even years depending on the case.
Instead, when someone transfers the title of property to an irrevocable trust, he/she no longer owns the transferred assets. In case of death, the trust’s trustee must distribute the assets held in the arrangement under the terms of the trust agreement.
Another advantage of setting up an irrevocable trust is guaranteeing privacy upon the trustor’s passing.
As the last will must be filed with the court to initiate probate, the provisions in the document are part of public records. Hence, any interested party can access probate filings to find feasible grounds for litigation.
An irrevocable trust is a private arrangement. Then, upon the trustor’s death, the trustee is not required to seek court supervision, as he/she can immediately proceed with the distribution of the assets held in the trust.
Consequently, the settlor’s estate and the identity of the beneficiaries are not available in public records, ensuring full privacy for those involved in the distribution of the decedent’s trust property.
Yet, it is important to consider that irrevocable trusts have a stricter nature when compared to other types of trust, which requires professional legal guidance to determine whether it is the ideal solution for your case.