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I Have a Living Trust, Do I Need a Will?

I’ve heard that if I have a living trust that I don’t need to establish a will—is that true?

- M.S., Pennsylvania

Answer:

To answer this question, you first need to understand what a living trust actually is. Under a living trust, someone known as the trustee is given legal title to certain pieces of property to administer for the trustor's benefit. When the trustor passes away, the property is then transferred to beneficiaries named by the trustor in the living trust. If the living trust is revocable, it means that the trustor can go back and remove some of the property from the trust before death; however, if it is irrevocable, the trust cannot be changed or canceled.

In many cases, the trustor can be the trustee of their own living trust, which allows them complete control. Under a living trust agreement, you would give the trustee (or yourself) the legal right to manage the assets that you have placed into the trust, and would instruct them to manage them for your benefit. You would also name the beneficiaries who would receive the property after you have passed away, and would provide specific guidance to the trustee on how you would like your assets and property to be managed.

While this can be an extremely beneficial aspect of estate planning—perhaps the most important part—it does not necessarily mean that you should not have a will. Since very rarely would someone place all of their assets into a living trust, a will would affect any assets that have not been placed there. In most cases, if you have a living trust, you can establish what is known as a "pour-over will," which would allow all property that is not in your trust be to be transferred to the trustee of your living will at the time of your death. This allows for simplicity, completeness, and privacy, since living trusts are not part of public record.

As with all aspects of estate planning, it is always in your best interests to discuss it directly with an estate planning attorney. A qualified attorney can help to evaluate your case to determine whether or not it is the right option for you. Unfortunately, while there are many advantages to using a living trust in conjunction with a pour-over will, there are also some disadvantages; for example, all property that is "poured" into the trust must pass through the probate process. For this reason, you should always consult with a lawyer first before making any drastic decisions regarding your estate. If you are interested in learning more, or discussing the possibility of drafting a living will, we encourage you to contact the Frayer Law Offices today.



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