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Understanding Living Trusts

One of the most common tools in estate planning is the use of a trust, which is an arrangement under which you (the grantor) can place assets that are for the ultimate benefit of someone else (the beneficiary) under the control of a trustee. Depending on your goals, the use of a trust can be an effective way to achieve your estate planning objectives.

I have a Will, why do I want a Living Trust?
Contrary to what most people have heard, a Will is probably not the best way to plan your estate – primarily because a Will does not avoid probate when you die. In fact, a Will is a one-way-ticket to probate – all Wills must be verified by the court before they can be enforced.

Also, because a Will can only go into effect after you pass away, it provides no protection if you become physically or mentally ill. Put another way, you could end up under the control of the probate court before you die.

The alternative to a Will is the Revocable Living Trust. Assets in the trust pass outside of probate and ensures you keep control of your assets while you are living and ensures your plan won’t be altered by the court or disgruntled relatives at your passing or incapacity.

What is Probate?
Probate is the legal process administered by the courts upon your death that ensures your debts are paid and your assets distributed according to your Will. If you don’t have a valid Will, your assets are distributed according to state law.

  • What’s so bad about Probate? It can be expensive. Legal/executor fees and other costs are currently estimated by AARP at 8%-10% or more of an estate’s gross value (before debts are paid). These costs must be paid prior to your estate being distributed to your heirs. If you own property in other states, your family could face multiple probates.
  • It takes time. Normally 9 months to 2 years. During part of this time, your assets are usually frozen so an accurate inventory can be taken. Nothing can be distributed or sold without the court’s and/or executor’s approval. If your family needs money to live on, they must request a living allowance – which may be denied.
  • No privacy. Probate files are public files, so anyone can see what you owned. This also invites unhappy heirs to contest your Will and expose your family to unscrupulous solicitors.
  • No control. The court has control and dictates who gets what and when. Your estate pays for this outside supervision. This can be frustrating for your family and often leads to disputes.

What is a Living Trust?
A Living Trust is a legal document that, like a Will, contains instructions for what you want to happen to your assets when you die. But, unlike a Will, with a Living Trust all expensive court proceedings and delays are eliminated. Your privacy is preserved and the emotional stress on your family is minimized. Furthermore, it can reduce or even eliminate estate taxes through the use of credit shelter provisions in the Trust; it is extremely hard to contest; and, it may even provide effective prenuptial protection.

How does a Living Trust avoid probate?
A Living Trust can help keep you and your family out of the courts. When you set up a Living Trust, you transfer assets from your name to the name of your trust, which you control – such as from “Bill and Betty Jones, husband and wife” to “Bill and Betty Jones, Trustees for the Bill and Betty Jones Family Trust.” All of the assets transferred are no longer your property (they are assets of the trust) and are not subject to Court-imposed guardianship if you become disabled.

As a trustee, you keep full control. You can do anything you did before – buy/sell assets, change or even cancel your trust during your lifetime (that’s why it’s called a Revocable Living Trust). You even file the same tax returns. Nothing changes but the title to your assets.

How does a Living Trust affect my taxes?
If you are married, one of the most important aspects of your Living Trust is the ability to avoid significant federal estate taxes. Federal law allows every individual to transfer a specific amount during his or her lifetime, or at death, to one or more beneficiaries other than a spouse. This is known as the “unified credit amount.” For 2008, this amount is $2,000,000 and is scheduled to increase incrementally to $3,500,000 in year 2009. Note that a Trust in a Will doesn’t quite do the same thing; a trust in a Will doesn’t go into effect until after you die and the Will is probated (so it does not avoid probate and provides no protection at incapacity).

Who should have a Living Trust?
Married or single, young or old – just about everyone can benefit from a Living Trust, especially if you have children (even more so if you are a single parent) or own any titled assets.

If you do not have a revocable living trust in place or if you would like to update your existing trust*, call WealthWise Financial Services at (800) 961-8160 for more information today.

*Legal services are not affiliated with, nor endorsed by, WealthWise Financial Services or LPL Financial.