In Elder Law News

No doubt you have heard from multiple sources that a living trust is a wonderful thing. Magazines, many financial planners, and media personalities like Suze Orman praise them. There are a few attorneys who tout them at free seminars. They claim a living trust avoids the

horrible time delays and costs of probate or a succession. Is this true? Is it true some of the time, or all of the time?

There is no doubt that a living trust has its place for some. But for many, it’s a waste of money and doesn’t avoid probate. And it can even be counter productive for many people!

 

What is a living trust anyhow?

A trust is not a real thing–it’s a relationship, referred to as a trust, governed by a set of rules established by state law. In a trust, one person (the “trustee”) administers and controls property that belongs to someone else (the “beneficiaries”). To some extent, it’s similar to a parent-child relationship, where the parent controls any property owned by their minor child.

The person who creates the trust, referred to as the “settlor” in Louisiana, but in other states as the “grantor” or the “trustor,” sets out the rules that will govern the trust, at least so far as state law allows.

Technically, a living trust is any trust created by a person while alive, as opposed to one created at death in a will. A living trust can be revocable (you can change it or terminate it so long as you are alive and competent) or irrevocable (once it’s done, you can’t change it without court permission). In this blog entry, we are discussing only the popular notion of a living trust–one that is revocable.

In a sense, a living trust is just an alias for you. You control it, you are the beneficiary until your death, you can spend the cash it holds, etc. It has no real substance until you die.

 

Purported advantages

A living trust is great estate planning tool for some. Here are a few of the purported advantages, some of which are true at least to some extent, some of which are false or misleading.

 

Avoids the need for probate.

 

  • Avoids the long delays and high costs of probate.

 

  • Significantly reduces or even eliminates follow up work after you die.

 

  • Allows privacy because no public filing of a trust inventory is required, while an inventory like must be filed in a succession.

 

  • Avoids a challenge to your will.

 

  • Saves taxes.

 

  • Protects your assets from creditors.

 

The truth

How important do I think the advantages of a living trust are? Not much. Even though I could draft my own living trust for no cost, I haven’t done so. I prefer a trust in a will (a testamentary trust) under my particular circumstances.

When you die, your assets are titled in your name and title must be transferred to the names of your heirs or legatees. This change doesn’t happen automatically for most assets, but is accomplished by a court judgment in a succession proceeding. However, if all of your assets are titled in the name of your trust, there are no assets in your name when you die, thus no need for probate. Unfortunately, most living trusts do not avoid probate. Either an asset has not been titled in the trust’s name (say a brokerage account, or a tract of land, or a time share) or a person has an asset when they die that they were not aware of (for example, an recent inheritance or some legal right in a lawsuit).

 

  • The cost of probate in the great majority of states, including Louisiana, is very reasonable because outdated laws have been repealed and replaced by very helpful laws that simplify the process.

 

  • A living trust does not avoid challenges by disgruntled heirs and the associated high legal fees any more than a will does. In fact, it takes a bit more competence to make a trust than it does a will, so a trust could be easier to challenge.

 

  • Creating and funding a living trust can easily cost as much as a succession, or more. I , however, like that a living trust will force you to organize your affairs in the process of titling your assets in the name of the trust. But, you can do the same by just creating an inventory of your assets and keeping it up to date.

 

  • Upon your death, the trustee of your trust will still have a lot of work to do, almost everything an executor would have to do. Only court filings may be unnecessary. And probate does not require a judge’s approval at every turn if your will specifies that the executor be “independent.”

 

  • A living trust no longer has the advantage of privacy. A new law enacted in 2017 allows the list of assets be sealed by court order if an independent representative has been appointed and makes the request. (Nearly all wills nowadays specify that the executor will be independent.)

 

  • A living trust does not save taxes. In fact, if you title your home in a living trust that is not drafted properly, you will lose your homestead exemption and your property taxes will increase by at least $1000. Furthermore, if you qualify for the assessment freeze for those over age 65, you will lose it if you place your home in a trust.

 

  • A living trust does not protect you one iota from creditors. What’s more–and this is big–it does not protect your assets from nursing home costs.

 

Medicaid trap

You should be aware that a living trust is not a good vehicle for those who are interested in Medicaid planning, which should be almost everyone. Take a married couple as an example. They have a living trust, properly funded, and the husband dies. At his death, his half of the trust splits off into an irrevocable trust. However, if his wife needs nursing home care within five years after the date of his death, she will be penalized based on the value of the assets in her husband’s share of the trust, meaning Medicaid won’t help out with the nursing home costs if she otherwise qualifies. However, if the couple did not have a living trust, but instead had wills that contained trusts, then the value of his trust could not be penalized by Medicaid. I’ll say more about this extremely important factor in a later blog.

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