Have a Trust in Place for the Legal Challenges of Aging

One question we are asked frequently is what the benefits of a Trust are versus just having a Will.  Our answer is that there are several reasons why a Trust may be preferable to a Will. For example, a Trust does not have to go through any probate proceedings if funded properly, and the Trust Administration process is a private one (vs. a public Court probate case) that helps clients retain their privacy. Trusts also help avoid probate proceedings in other states, which is a big benefit if you own property in multiple states.

Many clients prefer to invest the time and money on the front end of their planning and form a Trust to better control the distribution of their assets, rather than to rely on the courts to do so through a public and potentially costly probating of a Will in the future. In addition, it is more difficult to later challenge a Trust plan than a Will plan.

When creating a Trust, it is also wise to create a Pour-Over Will. This document creates a safety net to ensure that any forgotten or other accumulated assets not titled in your Trust are transferred through probate to your Trust.  Once these assets are in the Trust they will be distributed in accordance with your wishes.

There are several different types of Trusts that our Elder Law attorneys use to help you achieve your goals:

Revocable Trusts

Also called Living Trusts, a Revocable Trust allows you to change its terms while you are living. Assets held within Revocable Trusts avoid probate after your death and can protect beneficiaries’ inheritances from their creditors. However, these trusts do not protect assets from the Grantor’s creditors and are subject to applicable taxes.

Revocable Trusts are an excellent way to manage property and other assets during their lifetime and to transfer them to loved ones after death without probate. You can also modify or terminate a Revocable Trust if needed. Another benefit of a Revocable Trust is that it can designate your wishes regarding care in the event of your becoming incapacitated. Revocable Trusts help clients plan for their lifetime care needs, families’ futures, and the transfer of assets after death.  Many clients also add asset protection features for their future trust beneficiaries.

Irrevocable Trusts

An Irrevocable Trust avoids some tax issues and helps shield your assets from creditors, divorce proceedings, premature death of beneficiaries, and probate. Irrevocable Trusts may also be used for your own business planning, asset protection, and/or long-term care planning strategies.  The downside is that these Irrevocable Trusts cannot be altered to the same degree as Revocable Trusts after they are made.

Special Needs Trusts

A Special Needs Trust takes into account the needs of clients and loved ones if there is a period of chronic illness or incapacity. One type is a Third Party Trust, commonly called a Supplemental Needs Trust, which is typically set up by a parent or grandparent for a family member with special needs to help with care, but not causing the beneficiary to be disqualified from public assistance benefit programs such as Medicaid or Supplemental Security Income through the Social Security Administration.

IRA Trusts

IRA Trusts preserve IRA assets for named beneficiaries to foster investments and contain income-producing assets. Our Elder Law Attorneys understand the importance of keeping up with changes in legislation that affect IRAs and retirement planning. For example, the recent passing of the SECURE Act is one of the most significant changes to IRA distributions in years, and it will continue to have an impact in Estate planning.

Qualified Income Trusts

Qualified Income Trusts help with a client’s eligibility for Medicaid, so they can cover the high costs of long-term nursing home care, if their gross monthly income exceeds the current limit. A Qualified Income Trust (also called a Miller Trust or a D(4)(b) trust) must be established in order to qualify for Medicaid benefits if an individual’s gross monthly income exceeds the income limit.

Our Elder Law and Estate Planning Attorney has the knowledge, experience, and the empathy necessary to guide you through the process of preparing a Trust. We take exceptional care, as we work with many clients in North Florida, to create Trusts that address clients’ unique needs and wishes. If you need help with a Trust and preparing for your and your family’s lifetime needs, including making plans to provide for future care of minor children and other loved ones in case of incapacity or death, and the private transfer of assets after death, please do not delay, and set an appointment with our knowledgeable, compassionate, and caring Elder Law

Attorney at any our office located in Orange Park.

Grady H. Williams, Jr., LL.M.: Your Florida First Coast Elder Law Attorney.


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