Do I Need a Living Trust?

A Living Trust is another legal document which contains instructions as to how an individual's assets are to be distributed after his or her death. Unlike a Will, a Living Trust is useful during one's lifetime, as it protects assets for the individual in the event of physical or mental incapacity through the appointment of a trusted Co-Trustee or successor trustee. For these reasons, combined with the fact that a Living Trust eliminates Court intervention (Probate after death and formal Guardianship Proceedings in the event of incapacity), the preparation and funding of a Living Trust should be something you consider as part of your estate plan.

Yet despite the fact that a Living Trust can eliminate the costs of Probate, fees and involvement of the Surrogate's Court, such considerations may not always warrant this type of estate planning. Most importantly, if a Living Trust is executed without being properly funded with all of the individual's assets, there will still be a need for Probate, as a result of which the benefits of your Living Trust will be greatly diminished. Fees for the preparation of a Living Trust are generally higher than those for the preparation of a simple Will; and even those with a Living Trust should also have a Last Will and Testament. It is important to realize that, in many cases, the fees attached to Probate will probably not be too exorbitant, and that supervision by the Court of the administration of one's estate might conceivably better insure the proper handling of one's assets.

However, as is always the case, each person's situation is unique, and every individual situation and the concerns related thereto must be examined before proceeding with an estate plan. Such an examination should include a look at the individual's family situation; the ability to appoint trustworthy persons to manage the assets during the Grantor's lifetime; his or her financial situation; the individual's present testamentary plan; and, of course, tax considerations for large estates.

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