You may read a lot about living revocable trusts but still be unsure how those are different from a last will and testament. Well, let's discuss that and start with some definitions.
What is a Last Will and Testament?
A Will provides for passing property to one’s chosen beneficiaries and names a guardian for any minor children. It is executed with formalities according to state law. Upon the death of the “testator” (person who drafted the Will), the Will needs to go through a process called “probate.”
What are trusts?
In general, a “trust” is simply a legal arrangement where the trust itself owns property that is managed by a “trustee” for the benefit of one or more “beneficiaries.” Trusts can come in many flavors, often with funny sounding acronyms -- Irrevocable Life Insurance Trust (ILIT), Qualified Personal Residence Trust (QPRT), Qualified Terminable Interest Property Trust (QTIP), etc., etc.
What is a Living Revocable Trust?
Living Revocable Trusts are often used as a “will substitute” and pitched by some lawyers (and many non-lawyers) as a probate avoidance tool. The “settlor” (the creator of the trust) often serves as the initial trustee, using the trust property on which to live. If the settlor/trustee becomes incapacitated, a successor trustee takes over management duties. When the settlor/trustee dies, the successor trustee ensures that the trust property passes to the beneficiaries outside of probate.
Benefits to Using a Living Trust Plan.
Using a living trust plan can avoid probate and the cost of estate administration. The trust can also streamline handling real estate in more than the home state; that is, you do not have to hire an out-of-state lawyer to probate real estate owned in that other state or states. The living trust plan can increase privacy. Unlike the Will, the living trust is not recorded among the courthouse records because there is no probate of the living trust. The living trust can also appoint a successor trustee to take over if the settlor becomes incapacitated. Lastly, although the trust can still be attacked by a disgruntled beneficiary (or someone who thinks he or she should have been a beneficiary), the Will may be more susceptible to attack, primarily because the Will is recorded at the courthouse and requires more formalities when executing it than the trust.
Are there Downsides to Using a Living Trust Plan?
Creating living trusts can be expensive — costing as much as twice the cost of drafting the Will Plan. All trust assets need to be formally transferred into the trust, meaning preparation of real estate deeds, renaming and retitling bank accounts, etc. Contrary to popular belief, living trusts by themselves do not provide tax benefits; for tax purposes, more extensive planning is needed. Unlike the Will Plan, living trusts do not allow the settlor to pick a guardian for minor children. Lastly, in Virginia, the probate process is really nothing to be feared, and the increased costs, etc. of the living trust may not justify simply “avoiding probate."
Benefits to Using a Will Plan.
A Will is the only document in which one can pick a guardian for minor children. It also has low ongoing maintenance and oversight, and a relatively low cost to create. Lastly, using a Will Plan can shorten time periods for creditors’ claims against the estate.
Are there Downsides to Using a Will Plan?
A Will Plan is not a great way to handle estates including out-of-state property because your executor may have to hire a lawyer to deal with such property. For folks with privacy concerns, they should note that the Will is recorded in the courthouse, so it's there for the public to see. Also, standing alone, Will Plans have no effect if the testator becomes incapacitated (may need power of attorney too). Lastly, as mentioned briefly above, wills are generally easier to attack by an upset beneficiary (or someone cut out of the will) in the form of Will contests.
So, Which Plan is Better for Me and My Family?
How is this for a lawyer answer — “It depends.” As a general rule, for relatively simple Virginia estates with no real property outside of Virginia, a Will Plan will almost always be more cost-effective and efficient than a living trust plan. If one owns real property in several states, has serious privacy concerns about the will being recorded, and/or does not want court oversight and associated delays in administering the estate through probate, perhaps the living trust would work better. Do your research, get good advice, and avoid “putting the tool before the task.” Outline your goals and choose a plan that helps you achieve them most effectively.