In order to assure that a person’s assets go to whom he/she wishes, the simplest estate planning document to provide for the disposition of assets is a Will.  A Will also:  allows for the appointment of an executor (call a “Personal Representative” in Florida), may give burial instructions, may create a Trust upon the death of the person creating the Will, may provide for payment of certain debts and may direct reference to other documents.  Having a Will relieves the beneficiaries of the decedent from having to prove their entitlement to the assets titled in the decedent’s name.   A Will does not become effective until the death of the person who created the Will.

Living Wills
This document is used to direct that artificial prolongment of life be withheld or terminated, at the direction of a person named by the person creating the document.

A Trust may arise from a Will, but also may be a “stand-alone” document which is effective and useful during the life-time of the person who created the Trust (the person who created the Trust is alternatively referred to as “the Creator”, “the Settlor”, or “the Grantor.”) 

Living Trusts
Most Trusts which are effective during a Grantor’s lifetime are referred to as “Living Trusts.”  Nevertheless, such a Trust will contain testamentary provisions, much like a Will.  A big benefit of a “Living Trust” is that provision may be made for any period of time that the Grantor is not competent, including who will handle the Grantor’s Trust assets.  Such a Trust may direct that the Grantor be kept in his or her home or may direct that there need not be a Court proceeding to determine whether the Grantor is mentally competent.  In the absence of a Trust, or a Durable Power of Attorney, oftentimes a person who is not mentally competent becomes a Ward of  a Guardianship, subject to a Judge’s supervision over a Guardian appointed to make decisions for the person.  I have used the terms “competent” and “incompetent” in this paragraph so that the layperson may understand the concept, but in Florida, the correct terms are “has capacity” or “incapacitated.”

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