According to Caring.com's 2021 Estate Planning and Wills Study, only 20% of Americans have a living trust, while 60% have no estate planning documents. However, the same study also found that Living trusts are becoming increasingly popular among millennials, with 46% of millennials reporting that they have a living trust or are interested in getting one.
This highlights how living trusts are gaining popularity, and to be able to make the most of their benefits and mitigate their risks, it is crucial to have a better understanding of them.
Living trusts are legal documents that allow you to transfer assets to a trust while you are living. The trust then holds and manages these assets for the benefit of designated beneficiaries.
Living trusts can help you avoid probate, provide asset protection, and minimize estate taxes. They also allow you to manage your assets while you are alive and control how your assets will be distributed after your death.
To give you a more comprehensive understanding of living trusts, this article covers the following topics:
- What are Trusts?
- What are Living Trusts?
- What can be Included in Living Trusts?
- What are the Primary Purposes of Living Trusts?
- Differentiate Between Living Trusts Vs. Wills
- What are the Different Types of Living Trusts?
- What are the Benefits of Living Trusts?
- What are the Risks Associated with Living Trusts?
- How to Set Up a Living Trust?
- How to Determine if Living Trusts is the Right Choice for You?
- FAQs related to Living Trusts
- How can Deskera Help You with Living Trusts?
- Key Takeaways
- Related Articles
What are Trusts?
A trust or trust fund is a legal arrangement where a person or entity (the "trustee") holds and manages assets or property for the benefit of another person or entity (the "beneficiary"). The trustee has a fiduciary duty to manage the assets or property in the best interests of the beneficiary and in accordance with the terms of the trust.
Trusts can be created for various reasons, such as to provide for the care and support of a loved one with special needs, to protect assets from creditors or potential lawsuits, to manage and distribute wealth across generations, or to minimize estate taxes.
Trusts can be established during a person's lifetime or through their will or estate plan, and they can be revocable or irrevocable.
- Revocable trusts can be changed or terminated by the person who created the trust
- While irrevocable trusts generally cannot be modified or terminated without the consent of the beneficiaries.
Trust funds can also provide tax benefits, such as reducing estate taxes or inheritance taxes or minimizing income taxes on investment income. Trusts can be complex legal arrangements, and it is often advisable to work with an attorney who specializes in estate planning to create and manage a trust.
What are Living Trusts?
A living trust is a type of trust that is created during a person's lifetime to hold and manage their assets. The person who creates the trust, known as the grantor, usually also serves as the trustee and retains control over the assets in the trust. The grantor can modify or revoke the trust at any time during their lifetime.
A living trust can be used to manage a person's assets while they are alive and to provide for the management and distribution of their assets after their death. The trust document typically specifies how the assets in the trust are to be managed and distributed to the beneficiaries, which can include the grantor's spouse, children, or other individuals or organizations.
What you must keep in mind is that setting up a living trust can be complex, and it is often advisable to work with an attorney or other professional who specializes in estate planning and trust management.
What can be Included in Living Trusts?
A living trust can hold various types of assets, including but not limited to:
- Real estate: A living trust can hold title to real estate, including a primary residence, vacation home, rental property, or commercial property.
- Bank accounts and investments: A living trust can hold bank accounts, stocks, bonds, mutual funds, and other types of investments.
- Business interests: If the grantor owns a business, the living trust can hold an ownership interest in the business.
- Personal property: A living trust can hold personal property, such as art, jewelry, collectibles, and other valuable assets.
- Life insurance policies: A living trust can be named as the beneficiary of a life insurance policy.
- Intellectual property: If the grantor owns the intellectual property, such as patents or copyrights, the living trust can hold the ownership interest.
It's important to ensure that all assets intended for the trust are transferred to the trust and properly titled in the name of the trust. This helps to ensure that the assets are properly managed and distributed according to the grantor's wishes.
What are the Primary Purposes of Living Trusts?
The primary purpose of a living trust, also known as a revocable trust, is to manage and distribute a person's assets during their lifetime and after their death in a way that meets their wishes and goals.
A living trust can provide a valuable tool for managing and distributing assets in a way that meets the grantor's wishes and goals while also avoiding some of the costs, delays, and potential disputes that can arise with the probate process. Thus the primary purpose of living trusts is:
Avoiding Probate
When a person dies, their assets are typically subject to probate, which can be a time-consuming and costly legal process. By placing their assets in a living trust, the assets are owned by the trust and not by the individual, so they are not subject to probate. This can help ensure that the assets are distributed quickly and efficiently to the beneficiaries.
Providing Flexibility and Control
A living trust can provide flexibility and control over how the assets are managed and distributed. The trust document can specify how the assets are to be used during the grantor's lifetime and how they are to be distributed after their death. The grantor can also modify or revoke the trust at any time during their lifetime.
Protecting Privacy
The terms of a living trust are not part of the public record, so the grantor and their beneficiaries can enjoy greater privacy and confidentiality than they would with a will.
Reducing the Likelihood of a Will Contest
Since a living trust avoids probate, it can reduce the likelihood of a will contest or other legal challenges to the distribution of the assets.
Differentiate Between Living Trusts Vs. Wills
Living trusts and wills are both estate planning tools that serve similar but different purposes. Thus, it is important to work with an attorney or other estate planning professional to determine which tool is best for your individual needs and circumstances.
However, some of the key differences between living trusts and wills are:
Probate
One of the primary differences between living trusts and wills is the probate process. A will is subject to probate, which is a legal process that involves validating the will, paying off the deceased's debts, and distributing their assets to their beneficiaries.
A living trust, on the other hand, is not subject to probate because the assets in the trust are owned by the trust and not by the individual. This can help ensure that the assets are distributed quickly and efficiently to the beneficiaries without the need for court involvement.
Privacy
Another key difference between living trusts and wills is privacy. Will become public records during the probate process, so the details of the will and the assets being distributed become part of the public record. This can be problematic for individuals who value privacy or have sensitive family matters.
Living trusts are not public records and are not subject to the same level of scrutiny.
Flexibility
Living trusts offer greater flexibility than wills because the grantor can change the terms of the trust at any time during their lifetime. This can be particularly useful in situations where the grantor's circumstances or wishes change over time.
Wills, on the other hand, are typically set in stone once they are signed and require a formal legal process to be changed.
Incapacity
A living trust can provide a mechanism for managing assets in the event that the grantor becomes incapacitated, while a will does not. The trust document can specify who will manage the trust and how the assets will be used in the event of the grantor's incapacity.
A will, on the other hand, only takes effect after the grantor's death and does not address issues related to incapacity.
Cost
Living trusts can be more expensive to set up than wills because they involve creating a legal entity and transferring assets into the trust.
However, the costs of administering a living trust after the grantor's death are generally lower than the costs of probating a will.
What are the Different Types of Living Trusts?
There are several types of living trusts, each with its own unique features and benefits. The type of trust that is best for you will depend on your individual circumstances and estate planning goals.
The most common types of living trusts are:
Revocable Living Trust
A revocable living trust is the most common type of living trust. It can be amended or revoked by the grantor at any time during their lifetime. This type of trust allows the grantor to maintain control over the assets in the trust, and the assets are generally not subject to probate upon the grantor's death.
Irrevocable Living Trust
An irrevocable living trust is a trust that cannot be amended or revoked by the grantor once it is established. This type of trust is often used for tax planning purposes, as the assets in the trust are generally not subject to estate taxes upon the grantor's death.
Testamentary Trust
A testamentary trust is a trust that is created as part of the grantor's will and only goes into effect after the grantor's death. This type of trust can be used to provide for the grantor's minor children or other beneficiaries.
Charitable Trust
A charitable trust is a trust that is set up to benefit a charitable organization or cause. This type of trust can be used to provide a tax benefit for the grantor while also supporting a charitable cause.
Special Needs Trust
A special needs trust is a trust that is set up to provide for the needs of a person with a disability. This type of trust can be used to protect the beneficiary's eligibility for government benefits while also providing for their long-term care.
What are the Benefits of Living Trusts?
Living trusts offer several benefits for individuals who are planning their estates. Here are some of the key benefits of living trusts and how they can be advantageous:
Avoiding Probate
One of the primary benefits of living trusts is that they can help individuals and their families avoid the probate process. Probate is the court-supervised process of distributing a person's assets after their death.
It can be a time-consuming and expensive process, and the court fees and legal fees can be substantial. Living trusts are not subject to probate because the assets in the trust are owned by the trust and not by the individual.
This can help ensure that the assets are distributed quickly and efficiently to the beneficiaries without the need for court involvement.
Providing Privacy
Another benefit of living trusts is that they offer greater privacy than wills. Will become public records during the probate process, so the details of the will and the assets being distributed become part of the public record.
This can be problematic for individuals who value privacy or have sensitive family matters. Living trusts are not public records and are not subject to the same level of scrutiny.
Flexibility
Living trusts offer greater flexibility than wills because the grantor can change the terms of the trust at any time during their lifetime. This can be particularly useful in situations where the grantor's circumstances or wishes change over time.
Wills, on the other hand, are typically set in stone once they are signed and require a formal legal process to be changed.
Incapacity Planning
A living trust can provide a mechanism for managing assets in the event that the grantor becomes incapacitated. The trust document can specify who will manage the trust and how the assets will be used in the event of the grantor's incapacity.
This can be particularly valuable for individuals who are concerned about protecting their assets and providing for their loved ones in the event of a disability or incapacity.
Protecting Assets from Creditors and Lawsuits
Living trusts can also provide protection for assets against creditors and lawsuits. Assets held in a living trust are generally protected from creditors and judgments because they are owned by the trust and not by the individual.
This can be a valuable tool for individuals who are concerned about protecting their assets and shielding them from potential legal claims.
Avoiding Challenges to the Will
Living trusts can also help avoid challenges to the distribution of assets after the grantor's death. Since the assets in the trust are not subject to probate, there is less opportunity for beneficiaries to challenge the distribution of the assets.
What are the Risks Associated with Living Trusts?
While living trusts can offer several benefits for estate planning, there are also some risks associated with them. Here are some of the potential risks to consider:
Cost
One of the main potential risks of living trusts is the cost. Creating and maintaining a living trust can be more expensive than creating a will, especially if you use an attorney. The costs can include legal fees, fees for transferring assets to the trust, and ongoing administrative fees for managing the trust.
Complexities
Living trusts can also be more complex than wills. They require the transfer of assets into the trust, which can be a time-consuming process.
Additionally, the grantor needs to ensure that all assets are transferred to the trust in order to avoid the probate process. This can be difficult to do if the grantor is not organized or if there are a lot of assets to transfer.
Limited Protection from Creditors
While living trusts can offer some protection from creditors, they are not foolproof. If the grantor creates the trust while they are in debt or while they are facing potential legal claims, the trust may not offer much protection from these creditors.
Mismanagement of Assets
Another risk associated with living trusts is the potential for mismanagement of assets. If the trustee appointed to manage the trust is not trustworthy or does not have the necessary financial expertise, they may make poor investment decisions or mismanage the assets in the trust.
Lack of Oversight
Living trusts are not subject to the same level of oversight as wills. Since they do not go through the probate process, there is less court oversight of the trust and the distribution of assets. This can make it more difficult for beneficiaries to challenge the distribution of assets if they feel that they have been treated unfairly.
How to Set Up a Living Trust?
Setting up a living trust involves several steps. Here is a general overview of the process:
Determine if a Living Trust is Right for You
Before setting up a living trust, it's important to determine if it is the right estate planning tool for your individual needs and circumstances. Consider your assets, your family situation, and your long-term goals to determine if a living trust is appropriate.
Choose a Trustee
The next step is to choose a trustee. The trustee is responsible for managing the assets in the trust, following the instructions in the trust document, and distributing the assets to the beneficiaries after the grantor's death. The trustee can be an individual or a professional trustee, such as a trust company.
Create the Trust Document
The trust document is the legal document that establishes the trust and outlines the rules for managing assets. The trust document should include the name of the trust, the name of the trustee, the beneficiaries, and instructions for managing and distributing the assets.
Transfer Assets to the Trust
Once the trust document is created, the grantor needs to transfer ownership of their assets to the trust. This involves changing the title on bank accounts, investment accounts, and other assets to reflect the trust as the owner.
Fund the Trust
After transferring ownership of assets to the trust, the grantor needs to fund the trust by transferring assets into the trust. This can include cash, investments, real estate, and other assets.
Review and Update the Trust
Living trusts should be reviewed and updated periodically to ensure that they reflect the grantor's current wishes and circumstances. This may involve updating the trust document or making changes to the assets held in the trust.
Seek Legal Advice
It's important to work with an attorney or other estate planning professional when setting up a living trust. An experienced professional can help you navigate the legal requirements, draft the trust document, and ensure that the trust is set up correctly.
How to Determine if Living Trusts is the Right Choice for You?
Determining whether a living trust is a right choice for you depends on several factors, including your financial situation, estate planning goals, and personal preferences.
Here are some considerations to help you determine if a living trust is a right choice for you:
Estate Planning Goals
If you want to avoid probate, maintain privacy, or provide for the long-term care of a beneficiary, a living trust may be a good option.
Type and Value of Assets
If you own a significant amount of assets, including real estate or business interests, a living trust may be beneficial as it can help ensure these assets are properly managed and distributed.
Personal Preferences
If you want to maintain control over your assets during your lifetime and ensure they are distributed according to your wishes after your death, a living trust may be a good fit for you.
Cost
Setting up a living trust can be more expensive than creating a will, so it's important to consider the cost of establishing and maintaining a trust.
Comfort with Complexity
Living trusts can be more complex than wills, so it's important to consider whether you are comfortable with the additional complexity that comes with creating and maintaining trust.
FAQs related to Living Trusts
- What is a living trust?
A living trust is a legal document that allows you to transfer ownership of your assets into a trust while you are still alive. The trust will then be managed by a trustee you have chosen, and the assets will be distributed according to your wishes after you pass away.
- Why would I want a living trust?
A living trust can provide several benefits, including avoiding probate, maintaining privacy, reducing estate taxes, and ensuring your assets are distributed as you desire.
- What assets can be placed in a living trust?
Almost any asset can be placed in a living trust, including real estate, investments, bank accounts, and personal property.
- Do I need an attorney to create a living trust?
While it is possible to create a living trust on your own, it is generally recommended to work with an attorney who specializes in estate planning to ensure that the trust is properly set up and that all legal requirements are met.
- Can I be the trustee of my own living trust?
Yes, you can serve as the trustee of your own living trust while you are alive. However, you will need to name a successor trustee to manage the trust after you pass away.
- What happens to assets that are not placed in a living trust?
Assets that are not placed in a living trust will typically go through probate, which can be a lengthy and costly process.
- Can I change the terms of my living trust after it is created?
Yes, you can amend or revoke a living trust at any time while you are still alive.
- What is the difference between a revocable and irrevocable living trust?
A revocable living trust can be amended or revoked at any time while you are still alive, while an irrevocable living trust cannot be changed after it is created.
- Do I still need a will if I have a living trust?
Yes, it is recommended to have a pour-over will in place in case any assets are not transferred into the trust before you pass away.
- Do I need to transfer all of my assets into the living trust?
No, you can choose which assets to transfer into the trust and which to keep outside of it.
- Can I serve as both the trustee and the beneficiary of my living trust?
Yes, you can serve as both the trustee and the beneficiary of your living trust while you are alive.
- What is a successor trustee?
A successor trustee is a person or entity you name to manage the trust after you pass away or if you become incapacitated and are unable to manage the trust yourself.
- Can a living trust protect my assets from creditors?
A living trust can provide some protection for your assets from creditors, but it is not a complete solution. Consult with an attorney to discuss other options for asset protection.
- Can I transfer assets into a living trust to avoid estate taxes?
A living trust can help reduce estate taxes, but it is important to work with an estate planning attorney to determine the best strategy for your particular situation.
- Can a living trust be used to provide for the care of a disabled family member?
Yes, a special needs trust can be established within a living trust to provide for the care of a disabled family member.
- Can a living trust be used to support charitable organizations?
Yes, a charitable trust can be established within a living trust to provide support for charitable organizations.
- How do I fund my living trust?
To fund a living trust, you will need to transfer ownership of assets from yourself to the trust. This process typically involves changing the title or beneficiary designation of the assets.
How can Deskera Help You with Living Trusts?
Deskera can help you create a living trust by providing access to legal documents and templates, as well as the ability to manage and track the assets in the trust.
Specifically, Deskera can help you with living trusts in the following ways:
- Document creation: Deskera provides access to legal documents and templates for creating living trusts. These documents can help ensure that your trust is legally sound and that all necessary details are included.
- Asset management: Deskera Books and its financial management tools can help you manage the assets in your living trust, including tracking investments and keeping detailed records of all transactions.
- Reporting and compliance: Deskera can help you stay on top of reporting and compliance requirements for your living trust, including filing tax returns and other necessary paperwork.
- Collaboration: Deskera can also facilitate collaboration between trustees and beneficiaries of your living trust, making it easier to manage the trust's assets and ensure that everyone is on the same page.
Key Takeaways
A living trust is a type of trust that is created during a person's lifetime to hold and manage their assets. A living trust can hold various types of assets, including but not limited to:
- Real estate
- Bank account and investments
- Business interests
- Personal property
- Life insurance policies
- Intellectual property
The five different types of living trusts are:
- Revocable living trusts
- Irrevocable living trusts
- Testamentary trusts
- Charitable trusts
- Special needs trust
The benefits of living trusts are:
- Avoiding probate
- Providing privacy
- Flexibility
- Incapacity planning
- Protecting assets from creditors and lawsuits
- Avoiding challenges to the will
The risks associated with living trusts are:
- Cost
- Complexities
- Limited protection from creditors
- Mismanagement of assets
- Lack of oversight
The steps for setting up a living trust are as follows:
- Determine if a Living Trust is Right for You
- Choose a Trustee
- Create the Trust Document
- Transfer Assets to the Trust
- Fund the Trust
- Review and Update the Trust
- Seek Legal Advice
The factors to consider when determining if living trusts are the right choice for you are:
- Estate Planning Goals
- Type and Value of Assets
- Personal Preferences
- Cost
- Comfort with Complexity
While Deskera is primarily designed for businesses, it can also be a useful tool for managing personal finances, including living trusts. By providing access to legal documents and templates, as well as robust financial management and reporting tools, Deskera can help you create and manage a living trust with ease.
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Niti Samani
Niti Samani
Deskera Content Team
Niti Samani
