Over the years, I’ve heard quite a few people say, “I already have a
will. Why would I need a living
trust?” If you were wondering the same thing, believe it or not, a will
may not be the best
estate planning tool for you and your loved ones. The primary reason: a will has to be
probated when you pass away.
In order for the will to be enforced, the probate court has to validate
that the will is authentic. Once a will is validated by the probate court,
it goes through the probate process. This lengthy process can “tie
up” a decedent’s assets for some time.
Wills do not go into effect until after a person dies. So, if you only
have a will, it will not protect you in the event you become physically
or mentally incapacitated. For instance, if you are put into a coma after
a car accident, or if you develop a severe case of Alzheimer’s disease,
your will won’t protect you. What could happen is the court can
see that you’re unable to handle your financial affairs and take
control of your assets – a fear of millions of Americans and their
A revocable living trust is an excellent alternative to a will. The benefits:
it lets you control your assets while you’re alive, it lets you
name a successor trustee in case you become incapacitated (someone you
know and trust), and the trust assets avoid probate.
What is Probate?
Probate is a court-supervised process where a will is authenticated by the probate
court, an executor or personal representative is appointed to
administer the decedent’s estate, all debts and taxes are paid, and once all
is said and done, what’s left of the estate is distributed to the
beneficiaries of the estate.
Why do people take steps to avoid probate?
- It can be an expensive process.
- It can take 9 months to 2 years.
- Probate is public, so there is no privacy.
- You have no control over the cost. The probate process is determined by
the court, which controls the fees, how long it takes and which information
is available to the public.
What is a living trust? Like a will, it’s a legal document which
specifies what you want to happen to your assets when you die. Unlike
a will however, living trusts can avoid probate. With a trust, you can
control your assets while you’re alive, and it can prevent the court
from taking control over your assets if you become incapacitated.
To learn more about living trusts,
contact my Nashville probate and estate planning firm!