Do you Need a Living (a/k/a "revocable") Trust?

April 2, 2020

 

While you may not need one, it will greatly assist your surviving spouse and family members. People sometimes ask me if they should have a revocable trust as part of their estate plan. My answer is that it should be the centerpiece of their estate plan! Technically, not everyone "needs" a trust. However, experience has taught me it is the preferred vehicle for the efficient transfer assets and property after death to their surviving spouse and family members. A properly drafted and funded revocable trust avoids probate altogether.

 

Sometimes it is impossible to predict when a trust might be helpful. Recently, I concluded a difficult estate. There was essentially one asset. While the asset had a legal title, it also had several owners. There were many moving parts to getting the trust asset settled. The fact that the Grantor (the person who created the revocable trust, and then died) had a trust, and during life had funded it with the asset, greatly assisted the successor trustee to get the necessary work done without having to make filing in  probate court every time a decision needed to be made. The entire matter was handled privately. If the asset had to be probated, it would still be pending in court, and would have been 2-3 times more expensive to get settled.

Think of a revocable trust as a "will substitute," except the trust begins during life (that is why it is sometimes called a "living trust"). A trust also serves the same purpose as a Will after death. The fundamental difference is that the appointed successor trustee handles the post-death issues and distributes the estate. There is no need for probate!

 

This leads me to the most important consideration when considering a revocable trust for estate planning -- a trust must be funded with assets and property during life. Simply creating a revocable trust, but not funding it with assets, serves no good purpose. A trust is merely a written document. Ownership of real estate, financial accounts, rare collectors’ items, vehicles, and the like, cannot be transferred into the trust by one's good intentions alone. Funding is an active phase of the living trust process. This is why trusts generally cost more up front -- there is more work involved. However, there is no comparison to the time and money saved post-death, and the aggravation spared. 

 

While everyone's estate concerns are different, most people want to make life easier for their surviving spouse and family. A trust may be the most efficient, cost-effective, and private way to accomplish those goals.

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