"Put not your trust in money, but put your money in trust."
Oliver Wendell Holmes, Sr.


Living Trust v. Will

A Living Trust is an alternative to a traditional Will. Both a Will and Living Trust direct how your probate assets[1] will be distributed upon your death. They may be revised at any time prior to your death. The provisions of the Living Trust will also govern your assets during your lifetime. You will be the sole beneficiary of the trust during that time, and the Trustee may be you alone and/or someone else you select. A Living Trust can be revoked.

Since your assets, whether disposed of under a Will or Living Trust, will still be subject to estate taxes, there is no death tax benefit to utilizing one over the other. However, there are significant differences between the two which may make one a preferred alternative.

If you:

1. Want to avoid the costs and delays of probate;
2. Have concerns about a Will contest;
3. Have tangible property or realty in other states;
4. Have privacy concerns; and/or
5. Are concerned about the smooth transition of your estate upon your death and/or incapacity;

then a Living Trust would be the correct choice for you as it will more favorably address these issues.

However, to ensure you reap the complete benefits of this planning, it is important that you transfer all of your probate assets to the trust during your lifetime. This is the most time consuming and costly aspect of Living Trust planning. It is as if you are probating your estate while you are alive. If any of these assets are omitted from the trust, probate will most likely be necessary. Therefore, it is often customary to prepare a simple “pour-over” Will in conjunction with the Living Trust that directs all excluded assets be added to the Living Trust at your death. If the issues delineated above are not of particular concern to you or you are averse to transferring all of your assets to a lifetime trust now (such transfers can be time consuming and costly), an all encompassing Will would be appropriate for you. Typically, we only recommend a Living Trust if the client is concerned about disability within a few years or sooner


If you have any questions regarding this matter or any other estate planning techniques, please contact a Maurice Kassimir & Associates, P.C. Trusts & Estates attorney or e-mail us: sklawyers@skpclaw.com.

[1] Probate assets are assets held in your own name. Excluded from the probate estate are joint accounts, retirement accounts with beneficiaries other than the estate, and insurance policies where the estate is not the beneficiary.

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