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Law Offices of Ronald W. Rutz
Senior Voice Archives

October 9, 2000: Trust Pros and Cons; Property Titling

Q: I decided to get a living trust so there will be no probate, no cost to settle matters, and things will be easier for my family.

trust but there is a letter from the attorney saying that it will cost extra to "fund" it. As a result, because of the size of your estate and nature of your assets, a "probate" will still be needed either to put your assets into the trust after your death through a pour-over Will, or under intestate laws (if there is no Will) to distribute the estate assets to the beneficiaries set out in the probate statute and probably not to the ones that you set out in the trust. The trust will only control assets inside the trust at your death and no other assets.

Just as it cost you to set up the trust and put assets into the trust, it will cost to take the trust apart and transfer assets out of the trust to the beneficiaries. If the person who helped you set up the trust claims otherwise, then get his or her "guarantee" in writing along with the promise for him or her to do any work after death for free.

Finally, a trust may make it easier for the family, but remember someone needed to go through all the steps and "headaches" to put things into the trust and maintain the trust. Then after death the assets need to be handled again. People who sell these trusts describe them as a "pre-probate." Many others describe them as a "double probate."

And remember the trustee only controls property in the trust, thus a Durable Power of Appointment is still necessary. I hope that this trust indeed meets your and your family's expectations but a lot of work still lies ahead and additional money needs to be spent.

Q: I just want a Will. Why do you need to know about my property?

A: Too many people do a Will but then have contradictory beneficiary designations or payable on death provisions, or have titled property in joint tenancy, all of which override the Will clauses and may cause the assets to flow to people other than those named in the Will. It might be better to just let your Will be the collecting and distributing vehicle. Thus, consider taking assets out of joint tenancy and just putting them in your names, eliminating payable on death designations, and having the estate as the beneficiary.

And no it will probably have minimal effect on probate cost because we have unsupervised administration and except for part of the joint tenancy assets, will not increase the estate taxable exposure, since you "owned" those assets anyway.

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