Why This Estate Planning Tool Beats Just Having a Will
Q: "We established a living trust this past year and put our home and two rentals into it. Most of our investments are in IRAs, and I don't want to put them into the trust. I am now thinking that I may not have really needed the living trust. Should I go back to just a will and cancel the trust?"—Mark Schmidt
A: A living trust has advantages that a will can't offer, so you may want to keep both, says Greg Sellers, a certified public accountant and president of the National Association of Estate Planners and Councils.
A revocable living trust is similar to a will in that it indicates how you would like your assets to be distributed after your death and can be amended anytime. While you should always have a will, a living trust—which is simply a trust set up during your lifetime as opposed to one created after your death—can be a valuable addition to your estate plan. Here's why.
1. Your estate can be settled more quickly. Unlike with a will, the assets in a trust do not have to go through the probate process. Your heirs can skip the expense (lawyers, executors, paperwork, and the like), potential publicity, and inconvenience of a court-supervised distribution of your estate. And there's no delay while your heirs wait for creditors to come forward and file claims, even when you owe no one.
This probate escape hatch is more valuable in some states than others. Many states have an expedited form of probate for estates below a certain value, which varies by state. For example, in New York, you can use the simplified small estate process if the property, excluding real estate, is worth $20,000 or less. To see what probate shortcuts your state offers, check Nolo.com's list.
If most of your estate is in the form of IRAs or life insurance, you will not need to worry about probate either. As long as you have named a beneficiary, those assets will bypass probate.
2. You have back-up investment help. Because you must name a trustee to manage the assets, pay the taxes, maintain good records, and make payment to the beneficiaries—or a successor trustee if you're managing the trust yourself—you already have someone in place to take over if you become disabled or incapacitated and are no longer able to manage your money.
3. You can set things up for your children. Trusts can also be good if you have minor children or heirs with special needs. When you set up the trust, you can add provisions specifying when a child can receive the assets and how he or she can use the property. With a will, your assets pass straight to your heirs.
If you don’t find managing the trust too onerous, Sellers recommends keeping it since you’ve already gone through the effort and expense of establishing and funding it (you need to retitle the assets you put in a trust, for example). On a final note, you shouldn't transfer an IRA to a trust. That's counted as a withdrawal and could subject you to a penalty, depending on your age.