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  • Steven Maffei

A LIVING TRUST OR A WILL?

A Will is an instrument used to distribute your assets when you die but a living trust, also known as a revocable trust, instead of a Will, may be a better choice for you. A living trust is a trust that is formed and your assets are then placed into it while you are alive and then are distributed once you die per your instructions. During your lifetime, you can be the trustee of the trust which means you still maintain control of your assets as if they were in your name.

For example, someone named John Smith owns some real estate. If he wishes to leave it to his son, Jim Smith, he could make out a Will and make Jim the beneficiary. The Will would have to be probated to transfer the property. Instead, he could form a living trust (e.g. the “John Smith Revocable Trust”) that states that Jim gets the property when John dies. The property would be placed in the John Smith Revocable Trust. When John dies, the property can be instantly transferred to Jim. John could name himself trustee of the trust so he could use the property as if it was still in his name.


Advantages of a living trust over a Will


A living trust allows you to avoid probate. When you have a Will, the proposed Executor must petition the court to have it recognize the Will as your Last Will and Testament and appoint the Executor of your estate. This process is known as probate. The proposed Executor must file a number of forms and pay a fee. He or she may have to serve certain individuals with documents, locate the witnesses to the Will, and appear in court on a certain date. This entire process is avoided by placing your property in a living trust. Your property will automatically transfer to your beneficiaries upon your death as per the instructions in the trust without the necessity of going to court.

In the past, many attorneys would advise you to draft a Will instead of a living trust because an uncontested Will was probated quickly thus making the extra expense of drafting the trust unnecessary. However, the probate process is becoming very time-consuming with some proceedings taking over a year to complete due to court budget cuts, larger case volumes, and the COVID pandemic. A living trust’s seamless transfer of assets is now more important than ever.

A trust is not public. A probate proceeding is a matter of public record so everyone will be able to see your Will which must be filed with the court. Everyone will know who gets your assets. A transfer via a living trust is a private transaction so no one will know who your beneficiaries are and what they received.

Administering your estate is easier if you have distant relatives. When you probate a Will, you must serve notice on those who could object to your Will being probated. This group will include certain family members. Even if you have not spoken to these people in years and do not want to leave them anything, they will still have to be named and served with notice. This may be difficult for the Executor if he or she does not know who your family members are or where they live. They may be even harder to reach if they live outside the United States. Locating them is a waste of time and money especially if they get nothing. With a living trust, there is no requirement to notify anyone who is not named in the trust.

You have property in more than one State. A state only has jurisdiction over the property located within its borders. If you have property in more than one state, your Executor would have to bring a court proceeding in each state in order to have your property transferred pursuant to your Will. A living trust can hold property in many different states and transfer title to all of them without any court proceedings.


Disadvantages of a trust


Extra legal fees. A trust document is generally more complex than a Will so it will cost more to draft. There will be additional fees for preparing and filing the necessary paperwork to transfer certain types of property, such as real estate, into a trust.

However, some of the costs involved with a living trust would have to be spent on a probate proceeding. With a Will, there is the expense of court filing fees for a probate petition. As of this writing, if your assets are over $500,000.00, the filing fee in New York Surrogates Court is $1,250.00. The estate would also pay executor fees, legal fees and possibly fees to serve people with citations. In addition, if ancillary probate proceedings must be commenced in other states, your estate would pay the costs related to each state proceeding.

You must transfer your property into the trust. In order for a trust to control the disposition of your assets, the trust must be the owner of the assets. If you do not transfer your property, the trust will not control. This takes time and there may be filing fees involved for certain assets such as real estate.

Sometimes, despite your best efforts, an asset does not make it into your living trust. Therefore, you should also have a Will to place any asset into your trust after you die. This is commonly referred to as a Pour-over Will because your assets would “pour over” into the trust. This Will is viewed as a safety net that catches anything not placed in your trust. If your assets are properly titled, this Will may not have to be probated.

A living trust is something you should consider when developing your estate plan. A well-drafted trust offers certain advantages depending on your situation. You should consult with an experienced attorney to discuss if a living trust is for you.


The preceding is for factual information only and is not intended to be legal advice. You should never attempt to address any of the issues raised here without the assistance of an attorney.



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