USBOOMERS thanks attorney Robert Knauer for his review of this article for accuracy.
Frequently one hears, "Avoid probate costs, do a Living Trust." The source of such a comment is frequently someone passing through town doing a seminar. But what is behind the statement?
Definitions for the Layman
A Will is a set of instructions regarding the disposition of property, it takes effect at death.
Probate is the Court's supervised disposition of property in accordance with the directions in a Will.
A Trust is a set of instructions that can apply during life and/or death. Property in a Living Trust does not pass through probate.
A Personal Representative is the same as an Executor. It is the person or entity responsible for performing the instructions in a Trust.
Some points to consider
Most of a person's property is considered for federal estate tax purposes and for state death tax purposes regardless of whether it is held in a Living Trust or passes by Will. For example, life insurance does not pass by a Will (nor go through probate) and is not considered for state death tax purposes. However, it is considered for federal estate tax purposes.
Having a Trust, per se, does not save on federal estate taxes nor on state death taxes. Both Wills and Trusts can include provisions for tax savings strategies. Refer to the article "Estate Planning and You" in the Money section of usboomers for a table of when decedent's begin to owe federal estate taxes.
Probate is public information. Persons can go to the courthouse and see how a probate estate was distributed and to whom. This only applies to that portion of the estate that goes through probate.
Probate costs apply to that portion of the estate that goes through probate. Probate costs vary widely among states. Texas is low; New York is high.
Trusts can be private thereby shielding from prying eyes the details of the distribution of an estate. However, Trusts become open to public view when they are challenged or disputed.
Often, the costs to set up a Trust are substantially greater than the costs to prepare a Will.
The fees to administer a probate estate and to administer a Living Trust are often about the same. This can however vary significantly by state.
Trusts must be funded to be effective. A Trust provides instructions regarding property owned by the Trust. So, if a Trust is being utilized, assets must re-titled to the Trust. Exactly how to do this should involve legal council.
The Personal Representative under a Will, or the Trustee under a Trust, have a fiduciary responsibilities and are personally obligated to see that the document provisions are met. If a Trust is used, be sure that your Trustee is a trustworthy individual. The actions of a Trustee are generally not court supervised. The actions of a Personal Representative under a Will generally are court supervised.
Either a Will or a Trust may be appropriate depending on your circumstances. Neither is best for all situations. When deciding between a Will and a Trust, consult a reputable attorney. With growing frequency, non-attorneys are trying to "sell" Living Trusts. Technically, this is an unauthorized practice of law. You could be victimized. A reputable attorney is able to advise you on the many factors to consider. Do not buy into the scare tactic that a Trust is always better and cheaper.
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