This article was written by Timothy L. Takacs, Certified Elder Law Attorney
What is a living trust?
A trust is a legal way of holding, managing and distributing property. Every trust must have four elements:
- There must be someone who creates the trust, who is often called the "trustor" or the "grantor."
- There must be assets, usually called the trust "corpus."
- There must be someone who holds, manages and distributes the assets, who is called the "trustee."
- The trust must have a purpose. The person for whose benefit the trust is created is called the "beneficiary."
A living trust is revocable. That means that even though the trustor transfers assets to a living trust, the trustor can get his or her property back by revoking the trust. In most living trusts created in the United States, the trustor, trustee and beneficiary are all the same person.
Why do people create living trusts?
In many areas of the country, selling living trusts is big business. Living trusts salespeople hold seminars at motels, public libraries, community centers, and restaurants in which they tout the benefits of living trusts. According to a study conducted by the AARP, most persons who attend these seminars are elderly or retired.
These salespeople say that probating an estate—the court-supervised procedure for administering the assets of a deceased person—is expensive and time-consuming and exposes your private affairs to public view.
By creating living trusts, they say, people can avoid probate, thereby saving their families time and money and aggravation. Living trusts also avoid conservatorships, they say, because if you become disabled, a trustee is already in place to manage your trust assets for you.
And, especially, you won’t have to deal with lawyers and courts.
Most of these salespeople are honest. Few will tell you an outright lie. But there are many things they don’t tell you about living trusts.
Here are a baker’s dozen things that the living trust salespeople don’t tell you about living trusts. Some of these are things they really don’t want you to know.
The Baker’s Dozen
- For most estates in Tennessee and in many other states, probate is no big deal. It goes quickly, is private for the most part, and does not cost much money.
- Living trusts can be and are contested, just like a will. The living trust salesperson who claims that a living trust can’t be contested does not know the law.
- Administering a living trust after your death is not cost-free. Even if probate is avoided, the successor trustee should usually seek help from a lawyer in making sure that your debts are paid, all of the necessary tax forms filed and the assets in your trust legally distributed to your beneficiaries.
- After your death, your living trust will not cut off the claims of your creditors against the trust corpus. For that reason, the successor trustee will often open a probate estate anyway, to require your creditors to file claims within the time required by law or be barred from collecting their claims against your estate.
- Living trusts are much more expensive to set up and maintain than a will.
- Probate can often be avoided without using a living trust, by setting up "payable on death" accounts, making beneficiary designations, holding assets jointly, etc.
- In many instances, the trustor has failed to transfer all of his "probate assets" to his living trust. Consequently, when the trustor dies, this probate asset becomes subject to probate. His estate winds up in probate court anyway. So the trustor pays twice: first, to set up his living trust intending to avoid probate; and second, after his death, to go to probate court.
- Living trusts do not protect your assets from creditors and lawsuits.
- Living trusts are no more effective than wills in saving state and federal estate taxes.
- Living trusts can adversely affect your eligibility for Medicaid nursing home benefits.
- Living trusts are not necessary to manage your property if you become disabled. That’s what durable powers of attorney are for, which are much less expensive and easier to use.
- Some salespeople sell living trusts so they can learn what assets you own. These people will try to sell you an annuity or other financial products. They actually sell financial products for a living, not living trusts.
- Living trusts are not for everyone.
When Should You Have a Living Trust?
Not all living trusts are scams. They are useful and important tools in estate and tax planning, when used wisely and considerately. The most important reasons for having a living trust include:
- You own property in another state.
- You are concerned that you might become disabled and that, as a result, you will be subject to undue influence.
- You want to create other trusts inside your living trust that do not require court supervision.
- Beneficiaries of your estate are disabled.
- You live or spend a significant amount of time in a state in which probate is time-consuming, burdensome and costly.
Note: This document is not meant to give legal advice. You are not to rely on the limited information given here. Before acting on any information presented here, you are strongly urged to consult with an attorney who is competent in this area of the law.
- Question what you are told about living trusts. Salespeople are trying to make money by selling you a living trust.
- Beware of the salesperson who tries to sell you financial products in addition to a living trust.
- Get a second or even third professional opinion on whether a living trust is right for you.