Will Your Will Avoid Probate?
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by: ryshep13@gmail.com
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The term "living trust will" is not really a legal term. But, it is a term that is often used when people start looking into living trusts. People are used to having a will distribute property after the death of the person making out the will. People think a trust does the same thing as a will, which may cause some confusion.nnA living trust can substitute for a standard will in some ways, even though a living trust and a will are two separate legal documents and concepts. So, as a lawyer, if someone asks me about a "living trust will," I'm not sure what they would like.A living trust is a different legal document from a will. Actually, there should always be a will accompanying a living trust. It is called a "pour over will." Utilizing a pour over will with a living trust provides a safeguard.nnThere are different terms for living trusts--"living revocable trust" or "revocable living trusts." The term "revocable" is important because the trusts can always be revoked. The ability to change his or her mind and repeal the trust is the advantage of a revocable living trust. Heirs will receive a larger inheritance, avoid probate and reduce estate taxes by using living trusts. Probate will only be avoided if the revocable living trust is properly set up and managed.nnThe majority of the people who set up a living trust do not avoid probate. Because so many trusts fail to give the protection from probate that the client thought they were getting, the legal community has raised many bona fide arguments against them. The problem isn't the trust. The drawback is how the attorneys are educating their clients. Clients will not know how to avoid probate unless they are educated on how to "use their living trust.nnThe deceased's assets will need to be probated if the living trust does not function properly. Going through a long legal process at the probate court will be necessary at this point. When there is a will, the probate court will use it to help them make decisions throughout the probate proceedings. When there is no will, it becomes what is called an "intestate" proceeding. The definition of "intestate" is that the deceased died without a will.nnA pour over will should be drawn in conjunction with a living revocable trust. If for some reason assets need to be probated, the pour over will can be used by the probate court to guide the probate process. If all goes well, nothing will need to be probated and the pour over will won't be used.nnA pour over will does not outline how property is distributed in the same way a traditional will does. When property needs to be probated, the pour over will tells the court that all of the property should be "poured over" into the living revocable trust, and then distributed as outlined in the living trust. Lee R. Phillips' new book, Guaranteed Millionaire discusses revocable living trusts and pour over wills in detail. In addition, click the link to order Lee's FREE DVD, "Using the Law to Make Money and Protect Your Assets."
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For more information on living trust wills please visit our website above and get a free 90 minute informational DVD.n
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