One of the advantages of marriage over a cohabiting relationship is that a spouse in a marriage is a legal heir, and has a legal right in every state of the Union to inherit, with or without a will. The only way cohabitants can inherit is through a will or through a living or testamentary trust.
Trusts are rights and properties held by one party for the benefit of another. There are many reasons for a cohabitant to enter into a trust agreement. These include maintaining control over assets, avoiding probate, and avoiding inheritance taxes. A testamentary trust is a trust created by a will or a living or an inter-vivos trust document. A testamentary trust does not have the tax advantages of a living will, but does allow the beneficiary to use the property during his or her lifetime. The remaining principal or corpus would go to a second person after the beneficiary’s death. A living trust is a written agreement in which a trustee agrees to hold assets contributed by the grantor for the benefit of third parties or beneficiaries. In some states, but not all, the trustee, grantor, and initial beneficiary may all be the same person. A will or a testamentary trust becomes effective only upon the death of the testator. However, a living trust becomes effective immediately. As long as a living trust is not irrevocable, it can be amended or revoked at any time, and the grantor retains absolute control over the assets transferred to the trust, if he is the trustee. At the time of the grantor’s death, the living trust either becomes irrevocable or it terminates with the trust assets going to designated beneficiaries, or it continues to stay in existence, with the trustee continuing to hold assets for the benefit of the remaining beneficiaries. It is one way to avoid the expense of probate.