A notice of trust in Florida is a document that is required to be filed in the probate court in the county where the decedent (person who passed away) resided at the time of his or her death. The notice of trust is an important document and should be considered when you are deciding if a revocable trust is right for your Florida estate plan.
When does a notice of trust need to be filed?
Under section 736.05055(1), Florida Statutes, a notice of trust needs to be filed “upon the death of a settlor of a trust.” The settlor is the person who created the revocable trust. The notice of trust must be filed “with the court of the county of the settlor’s domicile and the court having jurisdiction of the settlor’s estate.” Under section 736.0105, Florida Statutes, it is mandatory that a trustee file a notice of trust be filed.
It is important to remember that a notice only needs to be filed for a revocable trust, as set out in section 733.707(3), Florida Statutes. Section 733.707(3) states that a revocable trust is “liable for the expenses of the administration and obligations of the decedent’s estate to the extent the decedent’s estate is insufficient to pay them.” This means that if a decedent (the person who died) has assets that need to be probated in addition to a revocable trust, the revocable trust will need to pay any debts of the decedent’s probate estate when the probate estate does not have enough assets to pay all the claims of creditors.
What information needs to be included in a notice of trust?
Under section 736.05055(2), Florida Statutes, a notice of trust must contain “the name of the settlor, the settlor’s date of death, the title of the trust, if any, the date of the trust, and the name and address of the trustee.” It’s important to point out that a notice of trust does not disclose any of the private details of a trust, including the value of the assets contained within the trust, who the beneficiaries of the trust are, or an inventory of the assets of the trust. This is a major reason why using a revocable trust can be beneficial for an estate plan. However, it is extremely important to get all assets of your estate to be titled in to the trust in order to avoid the obligations under section 733.707.
Is there anything else I should know about a notice of trust?
There are a few other important facts to understand about a notice of trust:
- Since a notice of trust does not contain information about the assets inside the trust, creditors do not know whether it is worthwhile to proceed against the trust for the payment of claims. Usually, this means that although a notice of trust is filed, creditors typically do not proceed against the trust, unless a creditor has some inside information about the contents of the trust.
- If a trustee forgets to file a notice of trust, the trust is still liable for payment of probate expenses of administration or creditors of the estate.
- If you have a trust, it is extremely important to title your assets in the name of your trust or so that the assets are automatically transferred into your trust at the time of your death. This means naming the trust as a pay on death or transfer on death beneficiary, titling your house or other real property in the name of the trust, and changing documentation for other titled assets to the trust. However, remember that titling cars in the same trust as your other assets is not a good idea because it may open the assets of the trust to liability. If you take these actions, you may be able to avoid probate of your estate.
- The notice of trust is only filed with the clerk of court in the county where the decedent resided at the time of his or her death. As a result, a creditor will need to be checking the court docket for the county where the decedent lived in order to detect the notice of trust. A notice of trust does not need to be published in a local paper.
- The time period for a creditor to file a claim against a trust after a notice of trust is filed is 2 years after the date of death of the decedent. Once the 2 year time period expires, creditor claims against the trust are barred.
How do I know that a notice of trust needs to be filed?
If you think that you may need to file a notice of trust or initiate probate proceedings for a deceased loved one, contact us today to schedule a free consultation with one of our Clearwater probate attorneys. If you are a trustee and think that you may need to file a notice of trust, it is best to talk to an attorney first to make sure that a notice of trust needs to be filed and make sure it’s done correctly. Issues dealing with creditors of a probate estate can be complex and an experienced probate attorney can guide you through the process. Furthermore, if you are contemplating an estate plan or making updates to an estate plan, we can discuss your various options and make a recommendation on an estate plan that will work best for your situation.
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