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Why Having a Trust is Not an Excuse to Forgo a Will

Living trusts have been and continue to be a popular estate planning tool. While sometimes overused, there are very good reasons for having living trusts and a variety of circumstances when they are an advisable option. However, many people mistakenly believe that having a living trust obviates the need for a will. This is simply not the case. Even in situations where they are appropriate and useful, a living trust should be used in conjunction with a will. A will remains a necessary component of an estate plan under nearly every circumstance.

Living trusts are intended to allow a more seamless transition to a successor trustee when the settlor of the trust dies or is incapacitated. In this way, living trusts combine the function of an estate and a guardianship and reduce or remove the need for court supervision. However, there are still reasons a will remains necessary:

  • Gap filling — Living trusts require active management in order to be effective. However, many people who have them do not realize this. If you own or acquire property that is not specifically titled to your trust, it may not be subject to management or distribution under that trust. In this case, a will can allow you to still direct the distribution of property that falls through the gaps of your trust rather than allowing it to lapse into intestacy and distribution under statutory rules.
  • After acquired property — When property is acquired after death, such as through a life insurance policy or lawsuit proceeds, it may not automatically become part of your trust. However, a will can address such property and direct its distribution into your trust or by whatever other terms you direct.

Living trusts can be very beneficial but do require a great deal more attention than a typical estate plan. Using a living trust in conjunction with a will, however, can help your estate plan to be more effective by ensuring all your property is covered even if not specifically placed in your trust. An experienced Florida estate planning lawyer can advise you if a living trust is appropriate to your situation and then guide you through the estate planning process.

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