Snowbird Attorney Tip #2 –
Creating a Living Trust gives you more control of your assets upon your death because you can choose almost anyone you want to manage your affairs.
In Florida, creating a Living Trust, as opposed to a Will, allows you greater flexibility to choose the person who can manage your affairs upon your death. Florida law is quite strict regarding who can serve as a Personal Representative. A Personal Representative is the equivalent of an Executor.
Generally, Florida law prohibits anyone who isn’t considered an immediate family member from serving as an Executor unless they living in Florida. Specifically, Florida Statute 733.304 states that:
A person who is not domiciled in the state cannot qualify as personal representative unless the person is:
- A legally adopted child or adopted parent of the decedent;
- Related by lineal consanguinity to the decedent;
- A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
- The spouse of a person otherwise qualified under this section.
Moreover, Florida law prohibits anyone who has been convicted of a felony from serving as an Executor or Personal Representative. See Florida Statute 733.303.
So if your son did something dumb at age 18, but turned their life around 10 years later, they would still be prohibited from serving as Executor. This is true even if your son is your only heir.
With a Florida Living Trust, there are minimal restrictions on who can serve as Trustee. (Your Trustee just needs to be at least age 18 and have capacity.) However, with a Florida Living Trust, you can name your boyfriend or girlfriend, or your friend from college who lives in New Jersey, or your sister’s step-child who lives in New York, or your second cousin who lives in Naples, Italy.
Keep in mind, creating a Living Trust is not enough. You also have to make sure that the Living Trust is funded prior to your death. If the Living Trust is not funded prior to your death, your heirs may still have to go through the probate process. Accordingly, for any assets that wind up going through Florida probate, you may not be able to name your first choice as Personal Representative.
To learn more about Florida probate or to speak with a Boca Raton Probate lawyer, please call us at 561-247-1557.