A lot of people equate estate planning to the creation of a simple will, but this is an oversimplification that can potentially yield negative consequences. Yes, a will can facilitate asset transfers, but the drawbacks and limitations may make a living trust a better choice.
Estate Administration
If you use a will to state your wishes, you name an executor to act as the administrator. The executor will admit the will to probate, and the court will provide supervision during the process. This is a matter of public record, so interested parties can pry into your final affairs.
It will typically take at least nine months for probate to run its course, and the inheritors must play a waiting game before they receive their inheritances. Thirdly, probate expenses reduce the value of the estate.
No Protections
When a will is used to transfer assets, the people who are named as beneficiaries receive lump sum distributions. There is no asset protection, and there are no spending safeguards.
This can be a source of concern if you will be leaving money to people who are not ready to handle large sums.
Revocable Living Trust
On the other hand, if you use a living trust as your asset transfer vehicle, these drawbacks are avoided. The administration process is not subject to probate, so it is private, and it can be less time-consuming.
No Loss of Control
There is no loss of control of assets that you convey into a revocable living trust. You will be the trustee while you are living, and you have total access to all of the assets that you convey to the trust.
As the grantor/trustee, you can change the terms at any time, and you can dissolve the trust entirely. To prepare for possible incapacity late in your life, you can name a disability trustee to assume the role if it becomes necessary.
Spendthrift Protections
You can include spendthrift protections when you have a revocable living trust. Firstly, the trust will become irrevocable after your death. The beneficiaries would have no access to the principal – the trustee would manage the trust according to your instructions.
Creditors of the beneficiaries would “step into their shoes” in legal parlance. Since the beneficiaries have no access to the principal, the same dynamic would apply to their creditors, so there is asset protection.
Plus, you do not have to allow for lump sum distributions all at once. You can instruct the trustee to provide limited distributions over time. For example, you could set a set dollar amount each month, or you could have the trustee distribute the trust earnings only.
Other Types of Trusts
While we are on the subject, we should emphasize the fact that the revocable living trust is a device that is useful for a wide range of people. This being stated, other types of trusts can be used to satisfy targeted objectives.
We are not going to get into them here, but we will cover them one by one in future blog posts, so stay tuned. You may be surprised when you find out about all of the options that are available to you when you plan your estate.
Attend an Estate Planning Seminar!
Education is very important to us. This is why we update this blog on an ongoing basis, and there are other resources you can access on this site. In addition, we conduct seminars on an ongoing basis that covers some very important topics.
There is no charge to attend the sessions, and you have an opportunity to connect with our firm for the first time in a pleasant environment. To see the dates and obtain more information, visit our seminar schedule page.
Need Help Now?
If you have already determined that it is time for you to work with a Staten Island, NY estate planning lawyer to put a plan in place, we can help. You can send us a message to request a consultation appointment, and we can be reached by phone at 332-456-0500.
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