Living Trusts and Estate Planning

There are many ways to protect assets for your loved ones. One way is to use a living trust. Living Trusts are routinely used by average persons, not just the wealthy, to avoid the high cost, publicity and inconvenience of probate. Property placed in an irrevocable trust will be excluded from your financial picture, for Medicaid purposes. If you name a proper beneficiary, the principal that you deposit into the trust (and possibly any income generated) will be sheltered from the state and can be preserved for your heirs. Typically, though, the trust must be in place and funded for a specific period of time for this strategy to be an effective Medicaid planning tool. For information about Medicaid planning trusts, consult an experienced attorney.

A trust has three parties - a donor, trustee and beneficiary. The donor sets up the trust, the trustee manages the property in the trust, and the beneficiary gets the use and enjoyment of the property. A person who sets up a living trust wears all three hats, donor, trustee, and beneficiary.

After a living trust is set up, it must be "funded". This involves changing the title of your assets, such as your home and your bank accounts, into the name of the trust. You maintain complete control over the money and the property in the trust. You can buy, sell, trade, or do whatever you want with your property, just as if the trust did not exist.

A living trust can be easily changed to meet the needs and goals of you and your family. In addition, the trust can provide for management of your assets in the event you become ill or incapacitated during your life. When used together or with a durable and health care power of attorney, it can help completely avoid expensive guardianship proceedings.

Upon your death, the person you have designated as "successor trustee," usually a child, automatically takes over management of your assets. Your successor trustee settles your affairs, and then distributes your money and property to your heirs.

Although the purpose of a trust, avoiding probate is simple, a trust is a complex legal document. There may be tax issues involved, and the terms of the trust must be thought through and drafted with great care and skill. Therefore, a trust should only be prepared by an attorney who is experienced in the field of estate planning, and who will stand behind his or her work. Those who purchase mail order trust kits advertised in the back of magazines, or who utilize the services of non-attorney door-to-door salesmen, are taking great perils with one of the most important documents of their life. On the other hand, a properly drafted living trust will lighten the burden that death places on your family, and will greatly simplify the process of transferring your assets.