How a Living Trust Avoids Probate

If you are like most people, you want to leave as much money as possible to your spouse, children, grandchildren or other heirs, and you want to limit court costs and legal fees as much as possible so more money stays in your estate. To do this, many people turn to a living trust to help avoid probate and the associated fees.

Probate involves the validating of a will, the identifying of heirs, paying off the debts and taxes of an estate, and distributing the remaining assets (if any) to a decedent’s beneficiaries. Probate can take up to a year or longer, thereby delaying the disbursement of assets and funds to heirs.

When individuals create living trusts, it’s much easier for surviving family or other heirs to transfer and receive property, and it happens sooner, without the need for probate. When you create a living trust, your beneficiaries can receive more of your property because it is not going towards court costs, executor and attorney fees.

Creating a Basic Living Trust

When you place assets and property into a trust, they can pass quickly and easily to your beneficiaries without being subject to probate. If you are married, you and your spouse can create a basic living trust that addresses your marital and separate property.

To create a basic living trust, your estate planning/probate attorney creates a trust that is similar to a will. You will be named the trustee, which means you will be in charge of the trust property until you pass away.

When you die, the person you named in your trust to take over would become the trustee. If you create a trust with your husband or wife, you may create a trust together where you would both be co-trustees.

This type of trust is also called a “revocable living trust.” Not only can you declare which individuals, non-profits or organizations will inherit from you, you can change or revoke the trust document at any time.

Should I have a will?

Generally, estate planning attorneys recommend that individuals with a trust also have a backup will; this is also called a “pour over will.” When you have a backup will, you can be rest assured that any property that is not transferred to the trust will still go to the family, friends, or organizations that you want to receive it.

If you do not write a will, any property that is not transferred to the trust will be divided under your state’s intestate succession laws – usually your closest relatives.

Are you interested in creating a living trust? To learn more about this process, contact a local estate planning or probate lawyer in our directory!