Why Is a Living Trust Important?
While no one wants to think about his or her own death, planning for the inevitable is an important part of protecting your assets and those you love.
There are a number of legal steps necessary to prepare your estate and your family for the future, including the use of a living trust particularly in you live in a state like Florida. In other states like New Jersey, probate is not as onerous of a process so a living trust may not be have the same benefits. What is a living trust, and what kind of protection does it offer? The article “An important part of protecting your assets and those you love” from The Times explains how this estate planning tool works.
A living trust is a legal entity created to make it easier to transfer assets like real estate property and other assets after death. It can also be used to help protect a vunerable adult from financial exploitation. Assets held within trusts pass directly to beneficiaries according to the terms of the trust. They do not go through probate. Once a trust is created, it must be funded, which places assets within the protection of the trust. These can include bank accounts, investments, real estate, vehicles, jewelry and other personal property of value.
It is important to stop here and recongize that a living trust, which is generally a revocable trust, may not offer asset protection for the grantor. This is important if there are assets held by a married couple as tenants-by-the-entirety (See, e.g., In re Givans, 623 B.R. 635 (Bankr. M.D. Fla. 2020)). A living trust can provide asset protection to a beneficiary such as a child who is a "spendthrift."
A living trust is managed by a designated trustee. You can be the trustee of your trust while you are living, and your spouse or partner may be a co-trustee. Every trust should also have a successor trustee to serve as your representative. This person will manage the trust and distribute assets after you die.
Living trusts are useful in real estate ownership, regardless of the size or number of properties owned. Any real estate property is subject to probate upon death if it is not placed inside a trust or other arrangements not taken if available under state law (e.g., transfer-on-death deeds). Dealing with real estate after death is challenging for heirs and executors.
Probate can take a long time. During that time, a building needs to be maintained, property taxes must be paid and insurance coverage needs to continue. Making changes to the property or even renting it out during probate may require permission from the court. If an expensive repair needs to be made, like a heating system or a new roof, and the estate is still in probate, someone has to make sure the repairs are done and pay for them.
Certain assets pass directly to beneficiaries. These include life insurance proceeds, Pay on Death (POD) bank accounts and retirement accounts, like IRAs and 401(k)s. Others, like the family home and personal property, could be bound up in probate for months, or years.
A living trust does more than bypass probate. It allows you to declare how you want your assets to be distributed and when. It can function like your Will. If you don’t want your children to receive a lot of money in one lump sum at a young age, it can break out the distribution over decades. A trust can also set life goals, like graduating from college, before funds are released.
A living trust and last will and testament are different legal documents and achieve different ends. The living trust is in effect, even when the grantor (person who creates the trust) is living. The Will goes into effect only when the grantor dies.
Only assets subject to probate are controlled by a Will, while assets in a trust skip probate. Trusts are private documents, while the Will becomes part of the public record once it is filed with the court. Anyone can see the entire document, which may not be what you intended.
Assets without a surviving joint owner pass through probate. If you fail to designate a beneficiary to receive an asset, then it also will be subject to probate.
Just as every person is different, every person’s estate plan is different. Talk with an estate planning attorney to learn what options are available and what is best for your family.
Learn more about estate planning by visiting our website: https://estateelderlawyer.com/estate-planning/
Reference: The Times (Oct. 29, 2021) “An important part of protecting your assets and those you love”