Estate Planning FAQ

If I have a Will, do I need a Living Trust?

Yes. A will requires the court process known as Probate. A recent study by the American Association or Retired Persons (AARP) describes probate as “costly, slow, and outmoded… [a] sad state of affairs.” Probate is very expensive and time consuming. The probate process may take 1to 2 years or longer, during which time all of your assets are frozen and can loose value. Your family must petition the court for the use and control of your assets, i.e., a legal nightmare. With a Living Trust, these problems are completely avoided.

Does a Living Trust avoid probate?

Yes. You simply transfer all of your property into the trust. Since you no longer own the property in your name, there is nothing left in your personal estate that requires probate upon your death. It’s that simple!

Doesn’t Joint Tenancy avoid probate?

No. Joint Tenancy only postpones probate. Probate takes place when the other joint tenant dies. Joint Tenancy also has very expensive tax consequences. Property that has appreciated in value can result in hundreds of thousands of dollars in taxed gain. A Living Trust receives a “set-up” in basis which usually results in no taxable gain.
If your joint partner is sued, you can lose your property. If your joint partner is incapacitated, you won’t be able to sell, rent, or refinance without first obtaining the court’s permission (i.e. a conservatorship). Joint Tenancy is a very poor substitute for a Living Trust.

Is it difficult to transfer my property to a Living Trust?

No. Your attorney will help you through this very simple process. Real property (such as you home) and other “titled” property will simply be transferred into your Living Trust by changing the title designation of the property.

Will I lose control of my property?

No. You still maintain complete control over your property. Just as you do now, because you become the manager, or Trustee, of the trust. Also, you may change, amend, or revoke your Trust at any time.

What happens if I become incapacitated?

With a Living Trust, your spouse, child, or trusted relative (i.e. your “successor trustee) takes over for you immediately upon your incapacity. Your successor trustee would continue to follow your wishes as set forth in the trust. When you recover, you automatically regain control. If your die, your successor will make the distribution of your trust property according to the instructions left in the trust.

Is a Living Trust expensive?

No. Not when you compare it to the costs of probate and estate taxes. Although the cost of your Living Trust may vary depending on the complexity of your estate, ELDER LAW SERVICES, APC., is committed to providing you with the finest documents at affordable prices.

Are there any disadvantages to a Living Trust?

No. Everything about a Living Trust is advantageous to you and your beneficiaries. If plans for incapacity, avoids the anguish and cost of probate, and can save hundreds of thousands of dollars in estate and income taxes.

Do I need an attorney to prepare my Living Trust?

Yes. A Living Trust is a legal document. Probate is a legal process. Only an attorney is qualified to give you legal advice. Errors caused by a paralegal, financial planner, or do-it-yourself form kit could defeat your estate planning intent, and be extremely costly. Your estate and family’s future is worth obtaining the legal advice and expertise of an attorney.