Revocable Living Trust: A Revocable Living Trust is a legal document which you create during your lifetime to transfer your assets into the ownership of the trust. This is a way to avoid probate after your death. As the trustee of the trust you maintain control over the assets. Upon your death the successor trustee distributes the assets to the beneficiaries, or hold the property in trust to be distributed over time, so there are no lawyer or court fees to pay thus avoiding probate. You can specifically choose how you assets will be distributed.
The Trust is highly recommended for those with multiple properties, or multiple beneficiaries, or young beneficiaries, or beneficiaries that cannot handle managing assets.
Pour-over Will: In your Estate Planning documents along with your Living Trust you will have a Pour-Over Will which covers any property that was not properly titled in the trust. This ensures that if something was left out like a newly bought car it will be put into the trust through the pour-over Will without going through the probate process. This is also where you designate a guardian for minor children.
Why is the living trust replacing the will?
1) to avoid probate;
2) to avoid guardianship;
3) to avoid joint ownership; and
4) to avoid estate taxes.
1) Probate: When there’s a will, there’s a probate. The living trust avoids probate.” A will is designed to be used in a probate. Probate is a court proceeding used to transfer assets owned by someone who has died. Only the executor, when authorized by the court, can sign off on assets held in the name of the deceased. Probate can be costly and time-consuming, but the biggest problem is that your loved ones will have to deal with courts and attorneys. The living trust avoids probate because assets are held in the trust, which lives on after the creator dies.
2) Guardianship: Guardianship is like a probate every year for the rest of your life. A will does nothing to prevent guardianship. When you become incapacitated without the proper documents, a guardian must be appointed to make business and health decisions for you. Guardianship can be costly, time-consuming and humiliating. The living trust avoids guardianship by providing that a successor trustee steps in to make such decisions for the trust assets. Health Care Documents and Durable Powers of Attorney complete the protection for guardianship.
3) Joint Ownership: Joint ownership problems can be worse than probate. Joint Ownership can avoid probate, but often results in worse problems. Simultaneous death of joint owners can result in a probate. Joint ownership can also mean loss of control. A joint owner’s creditors may be able to take the assets. Most important, joint ownership may mean higher income taxes, gift taxes and estate taxes.
4)Estate Taxes: The AB Living trust can double your ‘magic number’. This is the applicable exemption amount from federal estate taxes and is currently $13,610,000 (2024). Federal estate taxes are taxes on your assets after the magic number and currently start at 40%! When a person dies and leaves it all to their significant other, their magic number dies with them. But with an AB or ABC Living Trust, you can preserve the magic number of the person who dies, add it to the magic number of the survivor, and thereby double this magic number.