Wills or Trusts? The Case for Living Trusts

How to Eliminate the Hassles of Probate Lawyers

Introduction to Living Trusts

Simply put, living trusts are an expedient way to transfer property at your death. A living trust is a legal document that controls the transfer of property in the trust when you die.

Generally, living trusts are established during an individual's lifetime and can be modified or changed while that person is still alive. Circumstances do change and the option to make alterations in the trust is important. For this reason, a living trust is set up on a "revocable" basis. Revocable means you can modify or change the trust's provisions. Your other option would be to create an irrevocable trust. Once put in place, you are unable to change the terms of the trust regardless of the circumstances.

As you will see, living trusts speed up the process by which your property moves to your designated beneficiaries after you die. Today, and into the foreseeable future, this is vitally important as the United States is experiencing an unprecedented wealth transfer.

It is estimated, according to "Fortune" magazine, that some $6.8 trillion worth of assets will soon pass from parents to children, grandchildren, friends, charities and others. The questions remains: how will this wealth be transferred? Will it be the traditional methods of wills and probate or the new revolution of estate planning that has incorporated living trusts? Many legal experts believe that living trusts are the future of wealth transfers. The concept of living trusts has created controversy simply because the legal profession seems evenly split on the issue. Estate planners seem to favor living trusts but there are enough opposed to the concept to avoid a clear majority decision.

Living trusts are also called "inter vivos" trusts, a Latin term preferred by attorneys. The Internal Revenue Service calls them "grantor" trusts. All mean the same thing.

The Internal Revenue Service, however, recognizes the living trust as a valid estate planning tool and exhibits no prejudice against it. There are specific provisions in the tax laws that deal with living or grantor trusts.

The revocable provision means that while you live, you still effectively own all of the property that has been transferred into the trust. You can sell it, spend it, give it away; in short, do anything you wish since the property is still yours. The trust itself is merely a document in your lifetime that truly doesn't begin to function until you die. Then, the trust operates to transfer your property privately, outside of the reach of probate, to the specific individuals or organizations to whom you wish to leave your worldly possessions.

What is probate? Why do people try to avoid it?

Technically speaking, probate is the process by which one proves the validity of a will in court. If there is no one contesting the will, this should not take long. If there are complications, probate can take years. For those of you familiar with the works of Charles Dickens, recall "Bleak House" and the neverending probate case of Jarndyce vs. Jarndyce.

Probate has come to mean not just proving the validity of the will but the entire administrative sequence involving the passing of an owner's title to property after the owner's death. The deceased's property is inventoried and creditors are identified and paid after the payment is made to the estate's attorney, executor and tax entities.

The term "probate" also identifies the court which has jurisdiction over the estate probate and administration. Probate court also has jurisdiction over the guardianship of minors and mentally incompetent adults. All wills go through probate.

The average length of the probate process is twelve to eighteen months. Any estate transactions in that time must be approved by the probate court.

This can create havoc for beneficiaries. Since a living trust replaces a will and doesn't need validation from the probate court, considerable time and hassle can be saved.

This, then, is the purpose behind living trusts. The trust is simple to establish and, when carried out, makes it easy to transfer property. The trust is a matter of explicit instructions as to who gets what property after the owner dies. Like a will, the trust should cover all expected and unexpected events that might occur. The details tell the designated trustee how to use the money and property in the trust.

A living trust is a capable substitute for a will and a document that more and more people, disillusioned with the probate system, are turning to in their estate planning.

Terms You Should Know

Before proceeding further, it might be helpful to define a few terms for you. These terms will occur often during this text and in the actual living trust process, so it's important to familiarize yourself with their definitions.

A/B TRUST: Common term for a "marital life estate trust", generally used by couples whose estates are valued at more than $600,000.

ACCUMULATION TRUST: A trust that does not pay out all of its income until certain circumstances occur.

ADMINISTRATION: Courtsupervised distribution of the probate estate of the deceased. The person who manages this distribution is called the EXECUTOR if there is a will or an ADMINISTRATOR if there is not.

BENEFICIARY: The person or organization legally entitled to receive gifts made under the provisions of a legal document such as a will or trust.

CODICIL: An amendment to a will. It is a separate legal document, properly witnessed and executed.

CORPUS: Property owned by the trust, commonly referred to as "corpus of the trust".

DEATH TAXES: Amounts levied on the property of the deceased called estate taxes (federal) and inheritance (state) taxes.

DURABLE POWER OF ATTORNEY: A general power of attorney that will continue to be valid after its maker becomes incapacitated or incompetent.

DURABLE HEALTH CARE POWER OF ATTORNEY: A special power of attorney in which the maker gives another person authority to make health care decisions when the maker is unable to do so, due to injury or sickness.

ESTATE: In general, all of the property you own when you die.

ESTATE PLANNING: The legal maneuvering by which one dies with the smallest taxable and probate estate possible, with the ability of passing on your property to your beneficiaries with the least amount of hassle and expense.

INTESTATE: To die without a will or other valid estate transfer device. Estate will go through probate and be passed to heirs who are specified in the applicable state's laws.

IRREVOCABLE TRUST: A trust that cannot be changed, once established, except by court action in a proceeding referred to as REFORMATION.

JOINT TENANCY: A form of property ownership by two or more people where the death of one owner causes the transfer of that individual's share to go directly to the remaining owner(s). A will has no power to change the joint tenant's right of survivorship. This is another common tool used to avoid probate, although there may be gift tax consequences.

LIVING TRUST: Trust established while the maker is alive and which becomes immediately effective. It remains under the control of the maker until death. It allows property to pass to beneficiaries free of probate.

LIVING WILL: A document that provides instructions to physicians, health care providers, family and courts as to what lifeprolonging procedures are desired if a person should become terminally ill or be in a persistent vegetative state and unable to communicate.

PERSONAL PROPERTY: All property other than land, buildings attached to the land, and certain oil, gas and mineral interests.

PER STIRPES: A legal term meaning that if a person dies, the inheritance will pass to heirs in equal shares. It means "by right of representation".

POUR OVER WILL: A will that transfers the decedent's assets that are subject to the will to a trust that was already in effect prior to the decedent's death.

POWER OF ATTORNEY: A legal document whereby, a person authorize someone else to act for them.

PROBATE: Court proceeding in which the authenticity of a will is established, an executor or administrator is appointed, debts and taxes are paid, heirs are identified, and property in the probated estate is distributed according to the dictates of the will.

QUALIFIED TERMINABLE INTEREST PROPERTY TRUST: Also referred to as a "QTip" trust, it allows a surviving spouse to postpone, until his or her own death, payment of estate taxes that were assessed upon the death of the first spouse. The surviving spouse is still entitled to all of the income from the property.

REVOCABLE TRUST: A trust that can be changed by the trust maker at any time. Living trusts are revocable trusts.

SETTLOR: Another name for a maker of the trust, also called "trustor", "grantor" or "creator".

TENANCY IN COMMON: A form of joint ownership of property. Each owner is able to sell or give a way his or her share of property, as well as pass it along separately at death. There is no right of survivorship.

TESTACY: Dying with a valid will in place. All property controlled by the will passes through probate.

TESTAMENTARY TRUST: A trust created by a valid will.

TRUST: A legal arrangement under which one person or institution controls property given by another person for the benefit of a third party.

TRUSTEE: The person who, or institution which, manages the trust and its property under specific instruction.

WILL: A legal document that is used to pass property to heirs following a person's death. A will only becomes effective at the death of its maker.


The purpose of the living trust, as mentioned, is to be able to transfer property to a designated beneficiary(ies) without the usual hassles associated with wills and probates.

However, your living trust can't transfer property it doesn't own.

Therefore, the first step in making the trust effective is to transfer ownership, or title, of a property to the trust's name. It's safer to transfer the title to the trust's name rather than to the name of the trustee since it is more likely the trust name will continue even if you change trustees.

For the purposes of transferring title into a trust's name, there are two classifications of property: that which has an ownership document and that which doesn't.

Property without ownership documents include the following:

These items are transferred to a trust simply by listing them on a trust schedule. That's it! Pretty simple, right?

Property that has ownership documents requires a reregistration of ownership into the trust's name. Once the trust document has been established, signed and notarized, this process should begin. The document of the title must clearly show that the trust is the legal owner of the property or the trustee will not be able to legally transfer any of that property.

The type of property owned by the trust which requires this reregistration of ownership includes the following:

If you set up a trust and fail to reregister ownership of a specific property, it will remain outside the trust after you die. If you do not have a will, property will pass through intestacy and your state's succession law. The chances of leaving it to the person you wanted it to go to are reduced, and you will not avoid probate of the property--which is the purpose of a living will! Do not fail to reregister property that has a title. You prepare a new title document for each piece of property, transferring ownership into your trust's name. With real estate, for example, you must prepare and sign a deed listing the trust as the new owner. Then have the deed must be notarized and properly recorded. For bank accounts, ask your bank for the proper form. You can usually accomplish this in one trip.


When you establish a living trust, you must name a trustee. In fact, you should name both an initial trustee and a successor trustee in the event the initial trustee becomes incapacitated and cannot serve.

The trustee is the individual who or institution which actually manages the trust assets that you transfer in, according to the specific instructions you've given. The appointment is important, as this person or entity will have the responsibility of honoring your wishes your after death.

The initial trustee is, most often, YOU! That's why it's called a living trust. Since it's revocable, you can change assets in the trust as circumstances dictate. While you're alive, the trust can conform to your specific wishes.

It is important to understand this: a living trust does not take the control of your property from you--until you die. You handle it while you're alive. It's merely tucked away in a convenient legal vehicle that takes over immediately after you die and passes the property along to the people you designate without publicity and without the potential lengthy delay and costs of probate.

If you've set up a marital living trust, usually both spouses are cotrustees. When one spouse dies, the other spouse continues as the initial trustee.

It is possible to name someone else other than you and/or your spouse to be the initial trustee. It is uncommon and unnecessarily complicates your trust arrangements as you must keep separate records of the trust. You should work with your attorney to select a capable trustee if you wish.

Because something could happen to the initial trustee, it's vital to name a successor trustee. This is the individual who will be distributing your assets according to your wishes after you die, or if you become unable to manage the trust due to injury or illness. For property not held in the living trust, creation of a durable power of attorney and a health care durable power of attorney can designate someone else to carry on with the nontrust assets.

If your trust is a marital one, the successor trustee would not take over until after the second spouse dies.

The successor trustee could also die or become incapacitated, so it's imperative that you name an alternative trustee, too, to take over as successor in that circumstance.

What does the successor trustee do? If your instructions are explicit as to how you want property transferred at your death, then the job is somewhat easier. However are still things you must do:

It is important to name a successor trustee, preferably one whom you feel will diligently carry out your wishes. It may even be someone who is also a beneficiary of the trust assets. If there is any question about whom you should name, consult with an attorney for suggestions.


A will is a written document detailing instructions as to how you want your assets divided up after your death. You might also include information as to a child's guardianship, how (or if) you are to be buried and the appointment of an executor of your will.

The two main types of wills are:

The attested will is the most common. It is usually prepared by a lawyer in typewritten form and signed in front of several witnesses who have no benefit in the will whatsoever.

The holographic will is made without a lawyer, written on plain paper in your own handwriting, dated and signed. If your wishes are clear, this should be as effective as the attested will. It will more likely be disputed than an attested will and be subject to the interpretation of the courts, where anything could happen. Attested wills are safer for carrying out your final instructions.

Most people think they should have a will. Many people do, however, do not have a will because estate planning is generally not a high priority to many people nationwide. There are many fine estate planners around the country who work with individuals, but the average person doesn't put much thought, time or effort into addressing this important financial task of preparing for asset distribution after death.

Attorneys will be glad to help you do an attested will and may not charge much to do so. They'll get paid later--when the will goes through probate court. The payors will be your beneficiaries, who will see assets drain as a result of legal fees and court costs.

Probate can be lengthy, especially if the will and estate is a complex one. Not only does a will diminish the value of the property, it may also slow down the time it takes to actually transfer it to the designated beneficiary.

A will does let you choose your heirs, but the advantages stops there. You will not avoid probate, estate taxes (if any), death income taxes, privacy of transfers or incapacitation. These are the primary reasons one should set up a living trust INSTEAD of a will.

There is a will that is important when establishing a living trust. It's called the pourover will. This document puts any assets you failed to place in your living trust during your lifetime into the trust after your death. In effect, it "pours over" assets from the will to the trust. This document may also name the guardian for minor or incapacitated children.

The pourover will is a "failsafe" device to ensure that any property left out of the trust will be placed there. It is also a backup to the living trust in case it's invalidated for any reason. The pourover will can substantiate the trust simply by reaffirming its terms. It would be difficult for one or more heirs to challenge successfully both a living trust and a pourover will if their conditions and instructions are similar.


What is an estate? Exactly what are we trying to protect with a living trust?

An estate is essentially all the property you own (your assets) minus anything that you owe (liabilities). This calculation, assets minus liabilities, will yield a net worth for you. This is the value of your estate at the time it is calculated.

The size of your estate is important. More important is the value of your taxable estate. This will equal, roughly, the value of your estate less property left to your surviving spouse or to charity.

The other estate calculation of note is the probate estate. This is the portion of your estate that must go through probate before it can be distributed. Leaving your assets via a will puts them through probate.

The difference between the taxable estate and the probate estate should be considerable if you plan your estate properly. For example, let's say your estate calculation is $400,000. By transferring the title of your house, valued at $250,000 and your Chrysler stocks, valued at $75,000, to a living trust, you have reduced your PROBATE estate by $325,000 to $75,000. Your goal should be to try and reduce the probate estate to zero if possible.

Living trusts will save probate costs. They do not avoid death income taxes. There are other things you can do, planningwise, to reduce your taxable estate, but a living trust is not one of those. You can and should, however, reduce or even eliminate your probate costs.

Proper estate planning, in general, can accomplish all of the following:

These are important goals. A living trust is one example of addressing these goals in your estate planning. It is by no means the only thing you should do, but it is a document that can help you and your heirs immensely.

Other Types of Trusts

By now, you should understand the meaning and main purpose of a living trust. There are, however, other types of trusts that should be mentioned that assist in estate planning goals.

Living trusts are only truly functional when the creator of the trust passes away. It avoids probate costs. Other types of trusts help you to avoid taxes.

MARITAL ESTATE LIFE TRUST: Commonly referred to as the AB Trust, this trust is set up for couples whose combined estate is in excess of $600,000. $600,000 is the amount of your estate which is exempt from federal estate taxes. The marital life estate trust lets BOTH spouses take full advantage of the $600,000 estate tax exemption.

When a spouse dies, property is left for the use of the surviving spouse during the balance of his or her lifetime. However, the survivor never becomes the legal owner of the property. If legal ownership is never bestowed, then the property is not included in the survivor's estate and thus avoids being counted for tax purposes.

The trust is complex and has important ramifications for the surviving spouse which should be understood before putting this type of trust into effect.

QTIP TRUST: Short for Qualified Terminal Interest Property, it is a type of marital life estate trust that is intended to postpone payment of estate taxes when the first spouse dies. It only postpones them until the death of the second spouse and the taxes could be higher then since the amounts would be calculated on the thencurrent estate, but it saves the survivor a substantial amount of money while alive.

GENERATIONSKIPPING TRUST: You may have heard of this type of trust where the bulk of assets are left to the grandchildren, but the income derived from them is utilized by the trustor's own children. In essence, the estate "skips" the children, going directly to the grandchildren, but the use of the income is still there for the direct heirs; the use of the property is not.

Current laws impose a tax on all generationskipping transfers in excess of $1,000,000. If an estate is worth more than that, the children may want to get this excess property directly since they will have no access other than to income from the property that was transferred to the grandchildren.

It all depends on the size and type of estate.

These are examples of other trusts. This isn't meant to say you should attempt to set up every conceivable type of trust. The key is what your estate and heirs "picture" looks like this will govern the estate planning devices you will utilize.

Taking Inventory

To value your estate from both a net worth and living trust planning standpoint, you must inventory your assets and calculate your liabilities first.

Assets: This is the first calculation. You should list each item and describe it, indicating whether you own the property outright or the percentage of your ownership if not. Then list the actual value of the portion you own.

Begin with your liquid assets:

Next, list other personal property:

Then, list your real estate holdings including your own home(s), condominiums, mobile homes, land, etc.

Finally, list any business personal property including partnership interests, copyrights, patents, trademarks, stock options, etc.

Add these up and you will have the total amount of your assets.

Then, list your liabilities by name and the amount you owe, including:

Add all of these numbers up to arrive at your total liabilities. Subtract your liabilities from your assets to arrive at your net worth.

This allows you to place a value on your estate. You can see how close your estate is to $600,000. You can inventory property that has to be itemized for the living trust anyway. You can separate property by titled ownership and nontitled property.


Knowing where you are in valuing your estate is an excellent start to your estate planning program. The use of a living trust is a clear example of using estate planning to help you (and your heirs) save money and to avoid the hassles of court and lawyers.

Living Trust Basic Form

This form creates a revocable living trust. A living trust is a testamentary device, used instead of a will. Popularized by the infamous "How to Avoid Probate" books, Living Trusts are a type of estate planning which have become quite popular for many reasons. Although touted as a substitute for traditional wills, a living trust also requires a pour over will. A pour over will bequeaths any assets which have not been conveyed to the living trust, into the trust estate. Virtually all living trusts are "revocable" which means that the terms can be changed during the lifetime of the settlor. Irrevocable trusts create extensive tax consequences and are not suitable for regular estate planning. The trusts provided is revocable.

Revocable Trust

_____________________ , referred to herein as Settlor,
and ______________________ , referred to herein as Trustee,
(the singular term "Trustee" shall refer to multiple Trustees
if multiple Trustees are appointed) in consideration of the
covenants and undertakings herein agree:

Settlor herewith assigns and conveys to the Trustee, the
property described in Exhibit "1" hereto. All of said
property, together with any income, accessions and additions
herein, shall be held by the Trustee in trust for the purposes
set forth in this revocable living trust.

Settlor hereby reserves the right to revoke this trust at any
time, by written instrument. Revocation shall be effective
upon mailing or delivery to the Trustee of a notice of
revocation. Trustee may resign upon 30 days prior written
notice to the Settlor. For purposes of this agreement, notices
shall be delivered as follows:

[Write in your (the Settlor's) name and address below]




[Write in the Trustee's name and address below]




The Settlor during his lifetime may from time to time add
additional Trustees by notice to the then existing
Trustees. In the event there are multiple Trustees, the
majority shall in any matter in which the Trustees disagree
control. In the event that the Trustees are evenly divided
in the actions to be taken, the Trustee with the longest
tenure of service shall cast an additional vote to
determine the matter.

In the event that any Trustee resigns or is unwilling or
incapable of acting, during the Settlor's lifetime, the
Settlor shall name additional or replacement Trustees.
After the Settlor's death, ___________________ shall name
the replacements for any Trustees who resign or are
unwilling or incapable of acting. If __________________ is
unwilling or incapable of acting, ___________________ shall
name the same. In the event that _____________ shall be
unwilling or incapable of acting, the Court having
jurisdiction over states and trusts, located in ___________
County, State of _____________________ shall name the
successor Trustees.

The Settlor may from time to time withdraw any portion of
the corpus of the trust (whether capital or interest) by
written notice to the Trustee. The Trustee shall be
acquitted of all further responsibility for any assets so
delivered upon receipt by the Settlor.

The Trustee shall have the power to do all acts, institute
all proceedings and exercise all rights, powers and
privileges that an absolute owner of the trust property
would have, subject always to the discharge of Trustee's
fiduciary responsibilities.

I further direct that the Trustee shall act without bond.
Further, this Trust shall be administered without the
necessity for an administration thereof to be through the
court system. No entity dealing with the Trustee shall be
required to investigate or to confirm the Trustee's
authority to enter into any transaction or to administer
the application of the proceeds of any transaction.

If the Trustee is an individual, then the Trustee shall serve
without compensation, but with reimbursement for reasonable
and ordinary expenses. Nevertheless, the Trustee if an
attorney shall be entitled to compensation for legal services
rendered to the trust, or if an accountant, for accounting
services rendered to the trust.

If the Trustee is a corporation or banking entity, it shall be
entitled to customary, reasonable and ordinary charges and
expenses incurred in rendering services to the estate.

After paying the necessary expenses incurred in the management
and investment of the trust estate, including compensation as
provided for herein, the Trustee shall accumulate the same
during the lifetime of the Settlor. After Settlor's death the
Trustee shall distribute the net income of the Trust in the
following manner:

Please see exhibit 2
Should any beneficiary named above die, the Trustee shall
distribute the net income to the lineal descendants of the
beneficiary. If any beneficiary dies and is not survived by
lineal descendants, the distributions from the Trust shall be
adjusted to pro-rata increase all other shares.

After Settlor's death, the Trustee may apply so much of the
principal of the trust for the use of the beneficiaries at
such time or times as in Trustee's discretion Trustee may deem
advisable for their health, education, support or maintenance.
Any amounts so applied to the use of any beneficiary shall be
charged against, or deducted from, the principal of any share
then or thereafter set apart for said beneficiary.

The interest of the beneficiaries of this trust shall not be
assignable, and beneficiaries shall not have the right to
pledge, assign, convey, or otherwise transfer, lien or
encumber any portion of the income or principal of the trust.
All payments provided for by the beneficiaries herein shall be
made directly to them or their guardians as is provided

The Trustee in his discretion may make payments of income or
principal to any minor or incompetent beneficiary by paying
the same to the minor or incompetent's guardian, or to the
person having control over the minor or incompetent, or by
direct expenditure for the benefit of the minor or
incompetent. However, the Trustee may also pay an allowance in
such amount as he may see fit from time to time to the minor
or incompetent. Further, in the discretion of the Trustee the
distributions for a minor or incompetent beneficiary may be
accumulated and shall thereupon be paid to the minor or
incompetent upon their disability being removed. Any payment
under this Section shall operate as a full discharge of the
Trustee as to such payment.

The Trustee shall, after the death of the Settlor provide a
semiannual accounting to all competent, adult beneficiaries
detailing the transactions, if any, of the trust. The same
shall not be required to be audited, although the Trustee may,
in his sole discretion, may cause an audit to be performed
from time to time.

If at any time the total of the principal and income of the
trust is less than $500,000.00, the Trustee, may in his
absolute discretion, close out the trust by paying the
proportionate shares of each beneficiary to them. The Trustee
shall at that time deliver a final accounting to each
beneficiary. Upon payment, the Trustee shall be discharged
from all further duties.

Notwithstanding anything to the contrary herein contained, the
trust created by this agreement shall cease and terminate as
is provided in Sections IX, 21 years after the death of the
last survivor of trustors and all issue of trustors living at
the date of this agreement.

On any distribution from the trust, whether it be an ordinary
distribution or one of principal, or a final distribution, the
Trustee may apportion and allocate the assets of the trust
estate in cash and partly in kind, in Trustee's discretion.
The valuation, whether based on an appraisal, or not, made by
the Trustee shall be binding on the beneficiaries.

The Trustee may compromise, or abandon, at Trustee's option
any claim or claim against the trust, or subject the same to
arbitration. Or, the Trustee, in his absolute discretion, may
litigate any claim in favor of or against the estate.

Until the Trustee receives notice of any death, birth,
marriage, or other event on which the right to receive
distributions is based, the Trustee shall incur no liability
for any disbursements or distributions made in good faith.
This clause shall not prevent the Trustee from seeking
restitution of any payments made in error in his discretion.

The words "child", "children", "descendants" and "issue"
shall include children legally adopted and the lawful
descendants of such adoptees. This trust shall be governed by
the laws of _________________ [Put State here.]

    If any provision herein is found by a court of competent
jurisdiction to be invalid, the remainder shall govern.

Dated: ____________________________________

[Put the Notary Public's name here]

STATE OF ___________________
COUNTY OF _________________

[Notary Public's name here], being duly sworn states that
they executed this instrument for the purposes stated herein.

Notary Public
My Commission Expires: ____________________

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