Q: What is Probate and why does everyone want to avoid it?
When a loved one passes away, his or
her estate often goes through a court-managed process called probate or
estate administration where the assets of the deceased are managed and
distributed. If your loved-one owned his or her assets through a
well-drafted and properly funded Living Trust, it is likely that no
court-managed administration is necessary, though the successor trustee
needs to administer the distribution of the deceased. The length of
time needed to complete the probate of an estate depends on the size
and complexity of the estate and the local rules and schedule of the
Every probate estate is unique, but most involve the following steps:
Filing of a petition with the proper probate court.
- Notice to heirs under the Will or to statutory heirs (if no Will exists).
- Petition to appoint Executor (in the case of a Will) or Administrator for the estate.
- Inventory and appraisal of estate assets by Executor/Administrator.
- Payment of estate debt to rightful creditors. Sale of estate assets.
- Payment of estate taxes, if applicable.
- Final distribution of assets to heirs.
Q: What is a Living Trust?
Living Trust can be used to hold legal title to your assets and provide
a mechanism to manage them. You (and your spouse) are the trustee(s)
and beneficiaries of your trust during your lifetime. You also
designate successor trustees to carry out your instructions as you have
provided in case of death or incapacity. Unlike a Will, a Trust usually
becomes effective immediately after incapacity or death. Your Living
Trust is “revocable” which allows you to make changes and even to
terminate it. One of the great benefits of a properly funded Living
Trust is the fact that it will avoid probate and minimize the expenses
and delays associated with the settlement of your estate.
Q: What are the advantages of having a Living Trust?
a Will, a Living Trust is a legal document that provides for the
management and distribution of your assets after you pass away.
However, a Living Trust has certain advantages when compared to a Will.
A Living Trust allows for the immediate transfer of assets after death
without court interference. It also allows for the management of your
affairs in case of incapacity, without the need for a guardianship or
conservatorship process. With a properly funded Living Trust, there is
no need to undergo a potentially expensive and time-consuming public
probate process. In short, a well-thought out estate plan using a
Living Trust can provide your loved ones with the ability to administer
your estate privately, with more flexibility and in an efficient and
Q: Will I lose control over my assets if I establish a Living Trust?
not! During your lifetime when you are mentally competent, you have
complete control over all your assets. You may engage in any
transaction as the trustee of your Trust that you could before you had
a Living Trust. There are no changes in your income taxes. If you
filed a 1040 before you had a trust, you continue to file a 1040 when
you have a Living Trust. There are no new Tax Identification Numbers
to obtain. The Living Trust can be modified at any time or it can be
completely revoked if you so desire. Upon your incapacity, your durable
power of attorney comes into effect and allows your loved ones to
transact on your behalf according to the instructions you have laid out
in the Living Trust. Upon your passing, the Trust becomes irrevocable
so that no one can change your testamentary wishes. For married
couples, the surviving spouse still has total control over his or her
share of assets after its transfer to the survivor’s trust, and the
trust becomes irrevocable only as to the deceased spouse’s share.
Q: What assets are left outside of my trust?
with beneficiary designations such as a life insurance policy or
annuity payable directly to a named beneficiary need not be transferred
to your Living Trust. Furthermore, money from IRAs, Keoghs, 401(k)
accounts and most other retirement accounts transfer automatically,
outside probate, to the persons named as beneficiaries. Bank accounts
that are set up as payable-on-death account (POD for short) or an “in
trust for” account (a “Totten Trust”) with a named beneficiary also
pass to that beneficiary without having to be titled into your trust.
However, when you do your estate planning, it is important to seek the
counsel of an experienced attorney who is familiar with the intricate
regulations of retirement accounts and can coordinate the appropriate
beneficiary designations with your overall estate plan.
Q: If I transfer real estate to my trust can the bank call my loan?
law prohibits financial institutions from calling or accelerating your
loan when you transfer property to your Living Trust as long as you
continue to live in that home. The only exception to the federal law,
enacted as part of the 1982 Garn-St. Germain Act is that it does not
provide protection for residential real estate with more than five
dwelling units. However, we find that most clients who do own
residential property with more than five dwelling units tend to own
them through a business entity and not directly in their individual
names and hence are not concerned with the five dwelling exception.
Q: Why do I need a Pour Over Will if I have a Living Trust?
Pour-Over Will is used first to name a guardian for minor children.
Second, it protects against intestacy in the event any assets have not
been transferred into the trust at the death of the Trustmaker/Owner.
It will also invalidate any previous Wills which you may have
executed. Its function is to “pour” any assets left out of the trust
into it so they are ultimately distributed according to the terms of