Summary of Living Trust Benefits
Avoids probate at death, including multiple probates if you own property in other states
Prevents court control of assets at incapacity
Brings all of your assets together under one plan
Provides maximum privacy
Quicker distribution of assets to beneficiaries
Assets can remain in trust until you want beneficiaries to inherit
Can reduce or eliminate estate taxes
Inexpensive, easy to set up and maintain
Can be changed or cancelled at any time
Difficult to contest
Prevents court control of minors' inheritances
Can protect dependents with special needs
Prevents unintentional disinheriting and other problems of joint ownership
Professional management with corporate trustee
Peace of mind
What is a living trust and how does it avoid probate?
A living trust is a legal document that, similar to a will, contains your instructions for what you want to happen to your assets when you die. BUT, unlike a will, a living trust can avoid probate at death, control all of your assets, and prevent the court from controlling your assets if you become incapacitated.
How does a living trust avoid probate and prevent court control of assets at incapacity?
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 "Bob and Sue Smith, husband and wife" to "Bob and Sue Smith, Trustees of the Smith Family Trust dated (month/day/year)."
Legally you no longer own anything titled into the trust; those assets now belong to your trust. So there is nothing for the courts to control when you die or become incapacitated. The concept is simple, but this is what keeps you and your family out of the courts.
Do I lose control of the assets in my trust?
Absolutely not. You keep full control. As trustee of your trust, you can do anything you could do before -- buy and sell assets, change or even cancel your trust. That's why it's called a revocable living trust. You even file the same tax returns. Nothing changes but the names on the titles.
Is it hard to transfer assets into my trust?
No, and our office, your financial adviser, your accountant, and insurance agent can help. Typically, you will change titles on real estate, stocks, CDs, bank accounts, investments, insurance and other assets with titles. Most living trusts also include jewelry, clothes, art, furniture, and other assets that do not have titles.
Some beneficiary designations (for example, insurance policies) should also be changed to your trust so the court can't control them if a beneficiary is incapacitated or no longer living when you die. (IRA, 401(k), etc. can be exceptions.)
Doesn't this take a lot of time?
It will take some time -- but you can do it now, or you can pay the courts and attorneys to do it for you later. One of the benefits of a living trust is that all of your assets are brought together under one plan. Don't delay "funding" your trust; it can only protect assets that have been transferred into it.
Should I consider a corporate trustee?
You may decide to be the trustee of your trust. However, some people select a corporate trustee (bank or trust company) to act as trustee or co-trustee now, especially if they don't have the time, ability or desire to manage their trusts, or if one or both spouses are ill. Corporate trustees are experienced investment managers, they are objective and reliable, and their fees are usually very reasonable.
If something happens to me, who has control?
If you and your spouse are co-trustees, either can act and have instant control if one becomes incapacitated or dies. If something happens to both of you, or if you are the only trustee, the successor trustee you personally selected will step in to manage your assets. If a corporate trustee is already your trustee or co-trustee, they will continue to manage your trust for you.
What does a successor trustee do?
If you become incapacitated, your successor trustee looks after your care and manages your financial affairs for as long as needed, using your assets to pay your expenses. If you recover, you resume control. When you die, your successor trustee pays your debts, files your tax returns and distributes your assets. All can be done quickly and privately, according to instructions in your trust, without court interference.
Who can be successor trustees?
Successor trustees can be individuals (adult children, other relatives, or trusted friends) and/or a corporate trustee. If you choose an individual, you should also name some additional successors in case your first choice is unable to act.
Does my trust end when I die?
Unlike a will, a trust doesn't have to die with you. Assets can stay in your trust, managed by the trustee you selected, until your beneficiaries reach the age(s) you want them to inherit. Your trust can continue longer to provide for a loved one with special needs, or to protect the assets from beneficiaries' creditors, spouses and future death taxes.
How can a living trust save on estate taxes?
Currently there are effectively no federal or state (in Tennessee) estate tax. However, that can change any time the legislation(s) are in session. If those laws change, your living trust can include a provision that will let you and your spouse use both of your exemptions, and transfer assets from qualifying for the estate tax, saving a substantial amount of money for your loved ones.
Doesn't a trust in a will do the same thing?
Not quite. A will can contain wording to create a testamentary trust to save estate taxes, care for minors, etc. But, because it's part of your will, this trust cannot go into effect until after you die and the will is probated. So it does not avoid probate and provides no protection at incapacity.
Is a living trust expensive?
Not when compared to all of the costs of court interference at incapacity and death. How much you pay will depend primarily on your goals and what you want to accomplish.
How long does it take to get a living trust?
It should only take a few weeks to prepare the legal documents after you make the basic decisions.
Should I have an attorney make my trust?
Yes, but you need the right attorney. We have considerable experience in living trusts and estate planning will provide you with valuable guidance and peace of mind that your trust is prepared and funded properly.
If I have a living trust, do I still need a will?
Yes, you need a "pour-over" will that acts as a safety net if you forget to transfer an asset to your trust. When you die, the will "catches" the forgotten asset and sends it into your trust. The asset may have to go through probate first, but it can then be distributed as part of your overall living trust plan. Also, if you have minor children, a guardian will need to be named in the will.
Is a "living will" the same as a living trust?
No. A living trust is for financial affairs. A living will is for medical affairs; it lets others know how you feel about life support in terminal situations.
Are living trusts new?
No, they've been used successfully for hundreds of years.
Who should have a living trust?
Age, marital status and wealth don't really matter. If you own titled assets and want your loved ones (spouse, children or parents) to avoid court interference at your death or incapacity, you should probably have a living trust. You may also want to encourage other family members to have one so you won't have to deal with the courts at their incapacity or death.