A Revocable Trust, or “Living Trust,” is established by an individual during his or her lifetime. The Creator of a Revocable Trust is called the “Settlor,” and this type of Trust is established primarily for his or her benefit.
The Settlor may retain the power to revoke, amend, modify or change the terms of the Trust at any time. The Settlor may also reserve the right to receive the income from the Trust during his or her lifetime as well as retain unrestricted access to the corpus, or principal, of the Trust.
Upon the death or permanent incapacity of the Settlor, the Trust becomes irrevocable and may not be subsequently amended.
In drafting a Florida Revocable Trust, the attorney generally utilizes one of two different formats, depending upon the particular circumstances of the Settlor. The conventional Revocable Trust is an agreement between two parties (the Settlor and a separate Trustee), while the Declaration of Trust is a one-party arrangement wherein the Settlor also serves as the initial, sole Trustee of the Trust.
In Florida, the Declaration of Trust is specifically authorized by Statute. Not every state allows a Settlor to serve as sole Trustee of his or her own Trust.
Once a Revocable Trust is in existence, it may only be changed by the Settlor making an Amendment to the Trust. Extreme caution should be exercised here. The Settlor should never make handwritten alterations (additions or deletions) directly to the face of the Trust Instrument because in doing so, the entire Trust may be invalidated. A valid Trust Amendment requires a new writing, modifying (only) the affected language, which is executed with the same formalities as the original Trust Instrument.
In Florida, since 1995, both the original Trust Instrument and all Amendments must be signed by the Settlor in the presence of at least two (2) attesting witnesses in order to be valid.
No oral Trusts or Amendments to Trusts are permitted.