Formalities Required When Forming Or Amending A Florida Revocable Living Trust

Often, the question arises as to what is necessary to form or amend a revocable living trust.  In Florida, there are generally two sets of rules that must be followed to establish a revocable living trust: (1) general rules related to the establishment of all trusts, and (2) special rules for revocable trusts with “testamentary aspects.”

In Florida, the following requirements are generally necessary for all trusts: (1) a “settlor” (also known as a“grantor”) who possesses the legal capacity to create a trust; (2) intent on the part of the settlor to create the trust; (3) a definite beneficiary (unless the trust qualifies under the Florida Statutes as a charitable trust, noncharitable trust, or animal trust); and a trustee with duties to perform.   It is also a requirement that the trustee cannot be the sole beneficiary.

A Florida revocable living trust requires additional formalities if the trust contains provisions in the trust document that dispose of trust property on or after the death of the settlor, other than a disposition to the settlor’s estate.  These “testamentary” revocable trusts are invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in Florida.  This generally means that the trust document must be signed at the bottom by the settlor and acknowledged by two witnesses before a Florida notary.

It is not uncommon for individuals who have previously formed a revocable living trust to then later seek to amend that trust by drafting their own documents outlining the changes they desire and store these new documents with the original trust in the hopes that they will be given legal effect at death.  Usually, this is done to save the expense of contacting an experienced Florida estate planning attorney and having an amendment drafted.  Unfortunately, if the individual is not aware of all of the required formalities, then they may fail to execute the document properly.  This can lead to confusion, higher costs, and the failure of the intended beneficiary to receive an asset.

When making changes to your estate plan, it is always a good idea to contact an experienced Florida estate planning attorney rather than resorting to self-help.  If you need to establish or change your estate plan, contact an Attorney in Jacksonville who can assist you today.