When person establishing a Trust (soemtimes called a “Settlor”) does not take the steps necessary to fund the Trust, in most instances a probate will be necessary in order to allow the transfer or liquidation of those assets. This would apply to most assets which are titled only in the Settlor’s name and which do not have a beneficiary or a POD designation.
In Florida, when a person establishes a Trust, they must take steps to “fund” the Trust, i.e. they must take steps to assure that their assets or property get into the Trust either by transferring ownership of the assets into the name of the Trust or by designating the Trust as beneficiary. Not accomplishing this funding can result in probate and if a probate is filed, the deceased person’s Last Will & Testament Will specify where those assets will be distributed.
Most estate planning lawyers who create a Trust for a client will also prepare what many lawyers call a “Pour-Over Will.” This is a Last Will & Testament which designates the Trust as beneficiary. In essence, the assets in the probate will “pour-over” into the Trust.
An example might help. Consider Mary Smith whose lawyer establishes a Trust. Mary owns a home, some savings bonds, and a stock brokerage account. If, at the time of May’s death, all of these assets have not been transferred into her Trust, i.e. they are still titled solely in Mary’s name, then a probate likely will be necessary in Florida.
Fortunately, Mary has a Pour-Over Will which reads as follows:
All the rest, residue and remainder of the property which I may own at the time of my death, real, personal and mixed, tangible and intangible, of whatsoever nature and wheresoever situated, I devise to the MARY SMITH LIVING TRUST DATED AUGUST 23, 2018.
This is fairly typical language for a Pour-Over Will. As a result, through the probate of Mary’s Pour-Over Will, Mary’s assets which are not in the Trust will be transferred into the Trust and ultimately to the beneficiaries which Mary designated.