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Trusts & Wills

Estate planning --trusts and wills -- is a legal area cloaked in mystery. Probate is the legal process in which a deceased person's property is distributed to that person's designated heirs. Many people believe that having any sort of a will avoids probate – but this is a myth. A will does not avoid probate at all, and is not designed to do so. A will makes your wishes known – that's all. A will does not transfer property ownership.

What is a Revocable Living Trust?

A revocable living trust is a set of documents set up so that when you die your property goes to the heirs that you've chosen.  One of the main reasons that people choose to create a living trust is to avoid probate.

With a Living Trust parents can transfer real property, such as the family home, to their heirs seamlessly without needing a judge to order the transfer. No court or judge needs to interfere with how you want your property distributed. While you're alive, you can do anything with your property that you could do before you placed it in your trust - including buying, selling, renting, and improving. And when you die or if you become incapacitated your property is immediately in the control of a trusted person or persons that you named. Many people name an adult child or close relative to take over, this person is called a Successor Trustee. The Successor Trustee, your heir, takes over where you left off – steps right into your shoes without a lengthy detour in the courthouse.

And .. then what is probate?

Many people believe that having any sort of a will avoids probate – but this is a huge blatant myth encouraged by probate attorneys everywhere. A will does not avoid probate at all, and is not designed to do so.When someone dies without a will there is a specific order of who inherits and how property and assets are divided. When someone dies without a will, that person's wishes are unknown, so the law must be applied to the order of distribution of assets. Having any sort of will is usually better than no will at all. But having a living trust in place is even better.

Even with a clear and valid will probate can take anywhere from six months to two years, depending on the state and county. Dying without a will, called dying intestate, slows down the probate process more. Dying with a will makes the probate process faster and more clear, only because the decedent's wishes are known. Either way, the designated heirs cannot take possession or control of their rightful property until the judge says so.

When someone sets up a Living Trust, the assets are transferred from the person's name to the name of the Revocable Living Trust. The property is transferred during the person's life, for this reason they are called "living" trusts, and are also called "inter vivos" trusts.

Adult children are often chosen as Successor Trustees. When a Trustor dies, since he or she already set up a Living Trust, the property is immediately in the control of her Successor Trustee. And a living trust also addresses a situation in which someone becomes temporarily incapacitated. The property goes into the temporary care and control of the Successor Trustee, and the Trustor resumes control as soon as he or she is able.