A living trust is a legal document created by you (the grantor) during your lifetime. Just like a will, a living trust spells out exactly what your desires are with regard to your assets, your dependents, and your heirs. The big difference is that a will becomes effective only after you die and your will has been entered into probate. A living trust bypasses the costly and time-consuming process of probate, enabling your successor trustee (who fills basically the same role as an executor of a will) to carry out your instructions as documented in your living trust at your death, and also if you’re unable to manage your financial, healthcare, and legal affairs due to incapacity.
Living trusts are available from estate planning attorneys, off-the-shelf software, and online resources, such as Nolo.
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A living trust is most appropriate for individuals who have complex financial or personal circumstances, such as substantial assets, a blended family, closely held business interests, or property in other states. If you have a complex situation or are uncomfortable trusting your personal knowledge and judgment with such important issues, you might consider hiring a qualified estate-planning attorney to draft this document. Yes, you’ll spend more money, but you can rest assured knowing that your wishes will be carried out exactly as you desire.
A living trust can also be a very effective tool for an unmarried individual, regardless of financial situation, presuming that the individual’s desires can’t be fulfilled by utilizing beneficiary designations and the joint with rights of survivorship titling option and powers of attorney.
The two types of living trusts are as follows:
- Revocable living trust: With a revocable living trust, you transfer your assets into the ownership of the trust. You retain control of those assets as the trustee of your revocable living trust. You can change or revoke the trust at any time you want. The assets in the trust pass directly to your beneficiaries without going through probate upon your death. However, neither wills nor revocable living trusts avoid or minimize estate taxes.
- Irrevocable living trust: An irrevocable trust allows you to permanently and irrevocably give away your assets during your lifetime. After you give away these assets, you have relinquished all control and interest in these assets. Due to that fact, these assets are no longer considered part of your estate and aren’t subject to estate taxes. As you likely imagine, an irrevocable trust is appropriate in only extremely rare circumstances, such as when you have more money than you or your spouse could ever use. Your beneficiaries would benefit at Uncle Sam’s expense if you utilized an irrevocable trust to reduce your taxable estate before your death.
Living trusts (revocable or irrevocable) typically cost $1,000 to $3,000 per person.
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What Is a Living Trust?
A living trust is a legal document, or trust, created during an individual's lifetime where a designated person, the trustee, is given responsibility for managing that individual's assets for the benefit of the eventual beneficiary. A living trust is designed to allow for the easy transfer of the trust creator or settlor's assets while bypassing the often complex and expensive legal process of probate. Living trust agreements designate a trustee who holds legal possession of assets and property that flow into the trust.
Key Takeaways
- A living trust designates a trustee to manage assets for the beneficiary, while the grantor is still alive.
- Trustees with fiduciary duty manage trusts according to the beneficiary's best interests.
- Living trusts can be either irrevocable or revocable.
How Living Trusts Work
Living trusts are managed by a trustee who typically has a fiduciary duty to manage the trust prudently in the best interests of the trust's beneficiary or beneficiaries designated by the trust settlor, also called a grantor. Upon the death of the settlor, these assets flow to the beneficiaries according to the grantor's wishes as outlined in the trust agreement. Unlike a will, however, a living trust is in effect while the settlor is alive and the trust does not have to clear the courts to reach its intended beneficiaries when the settlor dies or becomes incapacitated.
Types of Living Trusts
Living trusts can be irrevocable or revocable. With a living revocable trust, the trust settlor can designate himself or herself as the trustee and take control of assets within the trust. However, this stipulation means the assets in the trust remain a part of the trust settlor's estate, meaning the individual may still be liable for estate taxes should the estate be valued beyond the estate tax exemption at the time of death. The trust settlor also has the power to change and amend trust rules at any time. This means the trust settlor is free to change beneficiaries or undo the trust altogether.
With an irrevocable living trust, the settlor relinquishes certain rights to control over the trust. The trustee effectively becomes legal owner, but the individual would also reduce his or her taxable estate. Once the trust agreement for an irrevocable living trust is made, the named beneficiaries are set and the settlor can do little to amend that agreement.
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Asset Assignment Within Living Trusts
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A living trust itself can be named the beneficiary of certain assets which would otherwise flow directly to the named beneficiary regardless of what is stated in a will. These include employer-sponsored retirement accounts such as 401(K)s, individual retirement accounts (IRAs), life insurance policies, and certain bank accounts such as Payable on Death (POD) accounts. Living trusts can include accounts held in trust, which are created during the settlor's lifetime and are not established upon death as designated in a last will and testament.
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