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May 8, 2000: Living Trust

Q: I am 44, have an estate worth less than $700,000, have three children, ages 8, 12, and 19, and own all my property in joint tenancy with my spouse. I don't see why I should spend several thousand dollars for a living trust.

A: As long as you keep Colorado as your legal home, an expensive and complicated living trust is probably unnecessary.

But you do need Wills, such as testamentary trust wills, so that if both of you should die, a trust in the Will would protect any minor child, plus the trust will be in place to help any child through college and possibly graduate school. Otherwise the inheritance received by a minor child would be held in a conservatorship established through the Court with all the attended costs and requirements and administered by a trustee selected by the Judge.

At less than $700,000 of net worth, estate taxes are not a problem. But remember in adding up all the assets, include things such as life insurance and retirement accounts where benefits could pass on to someone other than your spouse.

All assets should be held in joint tenancy unless there is a business or personal reason to do otherwise. (Remember, do not be fooled by seeing both names on a document and assuming it is in joint tenancy, because it could be tenants in common which then could trigger an unexpected probate).

Anything with a beneficiary designation should have the spouse first but after the Wills are signed, the back-up should be changed to name the estate or the trust, not the children, so that the proceeds can be properly and uniformly directed.

Besides Wills, consider doing Durable Powers of Attorney. One spouse does not have the legal authority to automatically represent and bind the other, even if everything is in joint tenancy, without authority through a durable power of attorney or a conservatorship established through court proceedings.

If everything is in joint tenancy or has a beneficiary designation, there will be no Court involvement at the first death. Probate will only be faced at the second death. And in Colorado the worth of a living trust is questionable since the cost to do a probate, including attorney's fees, is usually less, sometimes much less, than setting up the trust, not to mention the cost to take the trust apart. In Colorado probate assets can be distributed anytime, no inventories and/or accountings are required, and the estate can be closed after six months.

Thus, do not feel living trusts are required to avoid probate, and living trusts are certainly not a substitute for a Durable Power of Attorney. But on the other hand, especially with children, you do need to get Wills and Durable Powers of Attorney in place. Thereafter, until you have an estate tax problem, these documents will be your basic estate documents for many years to come.

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