sharinglaw.net

the website of
Lisa Nachmias Davis,
Attorney at Law - Elder Law, Estate Planning & Probate,  Nonprofit Organizations

"What about living trusts?  I want to avoid probate!"  Despite what the "experts" on the bestseller list say, establishing a "living trust" may or may not be right for you. 

What is a living trust?  A "revocable" trust that you "fund" during life by transferring most or all of your assets into the name of a trustee. At your death, the assets pass as the trust provides. 

Advantages of living trusts during lifetime:

Help with managing your property 

Avoiding conservatorship or other probate court procedures if you are unable to handle your financial affairs 

Maintaining control over your property (you can change your mind) 

Advantages of living trusts at death:

"Avoid probate" (that is, avoid administrative expenses, including attorneys' fees, that necessarily arise from required court filings and hearings) 

No delay in disposing of assets 

No probate of out-of-state real estate that is held in a trust

Minimizes challenges (a Will must be "proven" to be admissible to probate; a trustee can act according to the trust provisions unless the trust is challenged in court)

Privacy 

When trust will continue after death, no accountings required as could be required for trusts under a will. 

Protection from statutory claims against your "estate" that may be made by a spouse, or on behalf of a spouse by third parties (such as the State, if the spouse is receiving Medicaid benefits) 

But:

ONLY if nothing is forgotten.  If you set up the trust but fail to transfer property to the trustee, the trust provides no benefit.  If you transfer property to the trust, but acquire new property that is not transferred, you do not avoid probate. 

In some states such as Connecticut, your estate will pay probate fees whether or not your estate passes through probate; if your estate is substantial enough to require a federal estate tax return, additional probate costs may be relatively insignificant. 

A living trust does not save death taxes or ensure Title XIX eligibility.  

It is sometimes important to have an "executor" appointed to make claims against insurance companies or bring lawsuits, and this is not  possible without probate. 

In some states statutory rights against estates apply even if there is no estate and all property is held in a living trust. 

Probate oversight may be appropriate to ensure that your wishes are carried out unless you have complete confidence in the trustee you select. 

Attention:  Under Connecticut law, when a probate court is asked to appoint a conservator for a person who is claimed to be "incapable" of managing his/her affairs, it must take into account arrangements already made by the person claimed incapable - such as a power of attorney, and presumably, a trust.  The pros and cons of a funded living trust notwithstanding, this law makes having a living trust document in place, combined with a durable power of attorney, an important and useful "emergency" tool to maintain control over your affairs even when you are no longer capable of directing them yourself. 

 For further information on living trusts and estate planning, send email to me at davis@sharinglaw.net, or write to me at the address shown. I can only provide general information, and will not provide advice about a particular case without a formal engagement. Writing to me does not create an attorney-client relationship.

DISCLAIMER:  THIS INFORMATION IS NOT PROVIDED AS  LEGAL ADVICE AND CREATES NO ATTORNEY-CLIENT RELATIONSHIP.  NO ENDORSEMENT IS INTENDED BY ANY REFERENCES HEREIN.  PLEASE CONSULT YOUR OWN LEGAL AND FINANCIAL ADVISORS BEFORE TAKING ANY ACTION. 
 

T Back to Info/Links Index

Web-site design by: Tintern Productions

Lisa Nachmias Davis
Attorney at Law
205 Church Street, Third Floor
New Haven, CT 06510
Phone: 203-776-4400
Fax: 203-774-1060 or 776-4411
davis@sharinglaw.net