Your Legal Companion for Making Your Own Living Trust

1.  Overview of Living Trusts

• Living Trusts Explained
• Probate and Why You Want to Avoid It
• Other Ways to Avoid Probate
• Living Trusts and Estate Taxes
• Other Advantages of a Living Trust
• Possible Drawbacks of a Living Trust

2.   Human Realities and Living Trusts

• Leaving Unequal Amounts of Property to Children
• Second or Subsequent Marriages
• Single People
• Disinheriting a Child
• Unmarried Couples
• Same-Sex Couples
• Communicating Your Decisions to Family and Friends

3.  Common Questions About Living Trusts 

• Does Everyone Need a Living Trust?
• If I Prepare a Living Trust, Do I Need a Will?
• How Can I Leave Trust Property to Children and Young Adults?
• Will My Living Trust Reduce Estate Taxes?
• Will I Have to Pay Gift Taxes?
• Will a Living Trust Shield My Property From Creditors?
• Do I Need a “Catastrophic Illness Clause” in My Trust?
• How Does Where I Live Affect My Living Trust?
• Can I Place Real Estate in a Living Trust?
• Can I Sell or Give Away Trust Property While I'm Alive?
• Is a Bank Account Held in Trust Insured by the FDIC?
• Will Property in My Living Trust Get a “Stepped-Up” Tax Basis When I Die?
• Who Must Know About My Living Trust?
• What About Free Living Trust Seminars?
• Could Someone Challenge My Living Trust?

4. What Type of Trust Do You Need?

• If You Are Single
• If You Are Part of a Couple
• Individual Trusts for Members of a Couple
• Shared Living Trusts
• AB Trusts

5. Choosing What Property to Put in Your Living Trust

• Listing the Property to Be Put in Your Trust
• Property You Should Not Put in Your Living Trust
• Property You Can Put in Your Living Trust
• Marital Property Laws
• Completing the Property Worksheet

6. Trustees

• The Initial Trustee
• The Trustee After One Spouse’s Death or Incapacity
• The Successor Trustee

7. Choosing Your Beneficiaries

• Kinds of Trust Beneficiaries
• Naming Your Primary Beneficiaries
• Simultaneous Death Clauses
• Shared Gifts
• Some Common Concerns About Beneficiaries
• Naming Alternate Beneficiaries
• Residuary Beneficiaries
• Disinheritance
• Putting Conditions on Beneficiaries
• Property That Is No Longer in Your Trust at Your Death
• Beneficiary Worksheets

8. Property Left to Minor Children or Young Adults

• Property Management Options
• Which Method Is Better for You: Child’s Trust or Custodianship?
• Tax-Saving Educational Investment Plans
• Child’s Trusts
• Custodianships

9. Preparing Your Living Trust Document

• Choosing the Right Trust Form
• Making Changes to a Trust Form
• Step-by-Step Instructions
• Prepare Your Final Trust Document
• Consider Having Your Work Checked by a Lawyer
• Sign Your Living Trust in Front of a Notary

10. Transferring Property to Your Trust

• Paperwork
• Technical Ownership
• Certifications of Trust
• Real Estate
• Bank Accounts and Safe Deposit Boxes
• Securities
• Vehicles, Boats, and Planes
• Business Interests
• Limited Partnerships
• Copyrights
• Patents
• Royalties

11. Copying, Storing, and Registering Your Trust Document

• Making Copies
• Storing the Trust Document
• Registering the Trust

12. Living With Your Living Trust

• Adding Property to Your Living Trust
• Selling or Giving Away Trust Property
• When to Amend Your Living Trust Document
• Who Can Amend a Living Trust Document
• How to Amend Your Trust Document
• Revoking Your Living Trust

13. After a Grantor Dies

• Who Serves as Trustee After the Grantor’s Death
• The Trustee’s Duties
• Transferring Property to Beneficiaries
• Preparing and Filing Tax Returns
• Administering a Child’s Trust
• Administering a Custodianship

14. A Living Trust as Part of Your Estate Plan

• Using a Backup Will
• Other Probate-Avoidance Methods
• Federal Gift and Estate Taxes
• State Inheritance and Estate Taxes
• Planning for Incapacity
• Long-Term Trusts to Control Property

15. Wills

• Why Prepare a Backup Will?
• What You Can Do in a Backup Will
• Pour-Over Wills
• Avoiding Conflicts Between Your Will and Your Living Trust
• Filling In the Will Form
• Signing and Witnessing Your Will

16. If You Need Expert Help

• Hiring a Lawyer to Review Your Living Trust
• Working With an Expert
• Lawyer Fees
• Doing Your Own Legal Research

Glossary

Appendix: How to Use the Downloadable Forms on the Nolo Website

• Using the PDFs
• Using the RTFs
• List of Forms Available on the Nolo Website

Index

Chapter 1: Overview of Living Trusts

Living trusts are an efficient and effective way to transfer property at your death to the family members, other relatives, friends, or charities you’ve chosen. Essentially, a living trust performs the same function as a will, with the crucial difference that property left by a will must go through the probate court process. In probate, a deceased person’s will is proved valid in court, the person’s debts are paid, and, usually after about a year, the remaining property is finally distributed to the beneficiaries. In the vast majority of instances, these probate court proceedings waste time and money.

By contrast, property left by a living trust can go promptly and directly to your inheritors. They don’t have to bother with a probate court proceeding. That means they won’t have to spend any of your hard- earned money to pay for court and lawyer fees.

TIP
You don’t need to maintain separate tax records for your living trust. While you live, all transactions that are technically made by your living trust are simply reported on your personal income tax return. Indeed, while some paperwork is necessary to establish a probate- avoidance living trust and transfer property to it, there are no serious drawbacks or risks involved in creating or maintaining the trust.

These trusts are called “living” or sometimes “inter vivos” (Latin for “among the living”) because they’re created while you’re alive. They’re called “revocable” because you can revoke or change them at any time, for any reason, before you die.

While you live, you effectively keep ownership of all property that you’ve technically transferred to your living trust. You can do whatever you want to with any trust property, including selling it, spending it, or giving it away. A revocable living trust becomes operational at your death. At that point, it allows your trust property to be transferred, privately and outside of probate, to the people or organizations you have named as beneficiaries of the trust.

Living Trusts Explained

A trust can seem like a mysterious creature, dreamed up by lawyers and wrapped in legal jargon. But don’t let the word “trust” scare you, even though it might initially sound impressive or even slightly ominous. True, trusts were an invention of medieval England, used by aristocrats to evade restrictions on ownership and inheritance of land. Also true, complex trusts have traditionally been used by rich American families to preserve their wealth over generations. But happily, the types of living trusts this book covers are not complicated or beyond the reach of regular folks. Here are the basics.

The Concept of a Trust

A trust is an intangible legal entity (“legal fiction” might be a more accurate term). Beyond a few pieces of paper, you can’t see a trust, or touch it, but it does exist. The first step in creating a working trust is to prepare and sign a document called a “declaration of trust.”

Once you create and sign the declaration of trust, the trust exists. There must, however, be a flesh-and-blood person actually in charge of this property; that person is called the “trustee.” With traditional trusts, the trustee manages the property on behalf of someone else, called the “beneficiary.” However, with a living trust, until you die, you are the trustee of the trust you create and also, in effect, the beneficiary. Only after your death do the trust beneficiaries you’ve named in the trust document have any rights to your trust property.

Creating a Living Trust

When you create a living trust document with this book, you must identify:

• Yourself, as the “grantor”—or for a couple, the grantors. The grantor is the person who creates the trust. Sometimes this person is called the “settlor” or the “trustor.”
• The “trustee,” who manages the trust property. You are also the trustee, as long as you (or your spouse or partner, if you make a trust together) are alive.
• The “successor trustee,” who takes over after you (or you and your spouse or partner) die. This successor trustee turns the trust property over to the trust beneficiaries and performs any other task required by the trust.
• The trust “beneficiary” or “beneficiaries,” those who are entitled to receive the trust property at your death.
• The “property” that is subject to the trust.

A declaration of trust also includes other basic terms, such as the authority of the grantor to amend or revoke the document at any time, and the authority of the trustee.

How a Living Trust Works

The key to establishing a living trust to avoid probate is that the grantor—remember, that’s you, the person who sets up the trust—isn’t locked into anything. You can revise, amend, or revoke the trust for any (or no) reason, any time before your death, as long as you’re legally competent. And because you appoint yourself as the initial trustee, you can control and use the property as you see fit while you live.

What Is Competence?

“Competent” means having the mental capacity to make and understand decisions regarding your property. A person can become legally “incompetent” if declared so in a court proceeding, such as a custodianship or guardianship proceeding. If a person tries to make, revoke, or amend a living trust and someone challenges that person’s mental capacity, or competence, the matter can end up in a nasty court battle. Fortunately, such court disputes are quite rare. However, if you suspect that someone in your life might question your capacity (and the validity of your estate plan), see a lawyer to help guard against a legal challenge to your estate.

 

A Miniglossary of Living Trust Terms

Here are a few key words about living trusts that you’ll want to know as you read this chapter. You’ll find a full glossary of trust-related terms in the back of the book. Some basic terms: The person who sets up the living trust (that’s you, or you and your spouse or partner) is called a grantor. All the property you own at death, whether in your living trust or owned in some other form, is your estate. The market value of your property at your death, less all debts and liabilities on that property, is your net or taxable estate. The IRS allows your successor trustee to choose market value at your death or six months later. The property you transfer to the trust is called, collectively, the trust property, trust principal, or trust estate. (And, of course, there’s a Latin version: the trust corpus.) The person who has power over the trust property is called the trustee. The person the grantor names to take over as trustee after the grantor’s death (or, with a trust made jointly by a couple, after the death of both spouses) is called the successor trustee. The people or organizations who get the trust property when the grantor dies are called the beneficiaries of the trust. (While the grantors are alive, technically they themselves are the beneficiaries of the trust.)

 

And now for the legal magic of the living trust device. Although a living trust is only a legal fiction during your life, it assumes a very real presence for a brief period after your death. When you die, the living trust can no longer be revoked or altered. It is then irrevocable.

With a trust for a single person, after you die, the person you named in your trust document to be successor trustee takes over. That person is in charge of transferring the trust property to the family, friends, or charities you named as your trust beneficiaries.

With a trust for a couple, the surviving spouse or partner manages the trust. A successor trustee takes over after both spouses or partners die.

There is no court or governmental supervision to ensure that your successor trustee complies with the terms of your living trust. That means that a vital element of an effective living trust is naming someone you fully trust as your successor trustee. If there is no person you trust sufficiently to name as successor trustee, a living trust probably isn’t for you. You could name a bank, a trust company, or another financial institution as successor trustee, but doing so has serious drawbacks. (See Chapter 6.)

After the trust grantor dies, some paperwork is necessary to transfer the trust property to the beneficiaries, such as preparing new ownership documents. But because no probate is necessary for property that was transferred to the living trust, the whole thing can usually be handled within a few weeks. The successor trustee may need to hire an attorney to prepare some of the required documents. (See Chapter 13.)

No court proceedings are required to terminate the trust. After the job of getting the property to the beneficiaries is accomplished, the trust just evaporates, by its own terms. (See “Trust Administration After Death of a Grantor” in Chapter 13.)

In some cases, a living trust can continue some time after the trust maker dies—for example, a “child’s trust.” The trust forms in this book allow you to create a child’s trust if you wish, to leave trust property to one or more minors or young adult beneficiaries. These trusts are managed by your successor trustee and can last until the young beneficiary reaches the age you specified in your trust document. Then the beneficiary receives the trust property, and the trust ends.

Probate and Why You Want to Avoid It

Given that you’re reading this book, you probably already know that you want to avoid probate. If you still need any persuasion that avoiding probate is desirable, here’s a brief look at how the process actually works.

Probate is the legal process that includes:

• filing the deceased person’s will with the local probate court (called “surrogate” or “chancery” court in some places)
• taking inventory of the deceased person’s property
• having that property appraised
• paying legal debts, including taxes
• proving the will valid in court, and
• eventually distributing what’s left as the will directs.

If the deceased person didn’t leave a valid will, or a trust that distributes all of the deceased person’s property, the estate must still undergo probate. The process is called an “intestacy” proceeding, and the property is distributed to the closest relatives as state law dictates.

In some cases, the court oversight that probate brings can prevent fraud in transferring a deceased person’s property. It can also protect inheritors by resolving claims creditors have against a deceased person’s property. However, when the estate is simple and its property is transferred within a close circle of family and friends, very few estates have problems with fraud or creditors’ claims. Therefore, most estates have no need of the benefits of probate, and probate ends up being a waste of time and money.

The actual probate functions are essentially clerical and administrative. In the vast majority of probate cases, there’s no conflict, no contesting parties— none of the normal reasons for court proceedings or lawyers’ adversarial skills. Likewise, probate doesn’t usually call for legal research or lawyers’ drafting abilities. Instead, in the normal, uneventful probate proceeding, the family or other heirs of the deceased person provide a copy of the will and other financial information. The attorney’s secretary then fills in a small mound of forms and keeps track of filing deadlines and other procedural technicalities. Some lawyers hire probate form preparation companies to do all the real work. In most instances, the existence of these freelance paralegal companies is not disclosed to clients, who assume that lawyers’ offices at least do the routine paperwork they are paid so well for. In some states, the attorney makes a couple of routine court appearances; in others, normally the whole procedure is handled by mail.

Because of the extensive paperwork and waiting periods imposed by law, a typical probate takes up to a year or more, often much more. (I once worked in a law office that was profitably entering its seventh year of handling a probate estate—and a very wealthy estate it was.) During probate, the beneficiaries generally get nothing unless the judge allows the immediate family to receive a small “family allowance.”

RESOURCE
Read more about probate online. To learn more about avoiding probate and estate planning, go to Nolo’s “Wills, Trusts & Probate” section at www.nolo.com/legal-encyclopedia/wills-trusts-estates.

Most states now allow simplified probate for certain types of estates. While simplified probate can speed up the process and result in lower attorneys’ fees, even simplified probate can be a waste for most people.

Probate usually requires both an “executor” (called a “personal representative” in some states) and someone familiar with probate procedures, normally a probate attorney. The executor is a person appointed in the will who is responsible for supervising the estate, which means making sure that the will is followed. If the person died without a will, the court appoints an “administrator” (whose main qualification may be having a close relationship with the judge) to serve the same function. The executor, who is usually the spouse, partner, child, relative, or friend of the deceased, hires a probate lawyer to do the paperwork. The executor often hires the deceased person’s lawyer (who may even have possession of the will), but this is not required. Then the executor does little more than sign where the lawyer directs, wondering why the whole business is taking so long. For these services, the lawyer and the executor are each entitled to a hefty fee from the probate estate. Some lawyers even persuade clients into naming them as executors, enabling the lawyers to hire themselves as probate attorneys and collect two fees—one as executor, one as probate attorney. By contrast, most relatives and friends who serve as executors do not take the fee, especially if the person who serves is a substantial inheritor.

Extreme Probate Fees
Marilyn Monroe died in debt in 1962, but over the next 18 years, her estate received income, mostly from movie royalties, in excess of $1.6 million. When her estate was settled in 1980, her executor announced that debts of $372,136 had been paid, and $101,229 was left for inheritors. More than $1 million of Monroe’s estate was consumed by probate fees.

 

While probate can evoke images of greedy lawyers consuming most of an estate in fees, lawyers’ fees rarely actually devour the entire estate. In many states, the fees are what a court approves as “reasonable.” In a few states, the fees are based on a percentage of the estate subject to probate. Either way, probate attorneys’ fees for a routine estate with a gross value of $700,000 (these days, in many urban areas, this may be little more than a modest home, some savings, and a car) can amount to $15,000, or more. Fees based on the “gross” probate estate means that debts on property are not deducted to determine value. For example, if a house has a market value of $800,000 with a mortgage balance of $500,000 (net equity of $300,000), the gross value of the house, $800,000, is used to calculate attorneys’ fees.

Example: In California, lawyers’ probate fees are set by statute. (Cal. Prob. Code § 10810.) The fee for probate of a house is based on the gross value of that house. Given the prices of California real estate, this can result in a lot of money wasted on attorneys’ fees. For example, a house purchased for $150,000 years ago may now be worth $900,000. The probate fee for transferring this house will be about $21,000. That fee will be charged no matter how little equity the owners have in the house.

In addition to the probate lawyer’s fees, there are executor’s fees, court costs, appraiser’s fees, and other possible expenses. Moreover, if the basic fee is set by statute and there are any “extraordinary” services performed for the estate, the attorney or executor can ask the court for additional fees.

Other Ways to Avoid Probate

The most flexible and complete probate-avoidance method is, undoubtedly, the living trust. However, there are a number of other effective methods, some of which are quite easy and inexpensive to use.

Informal Probate Avoidance

While I’m a fan of living trusts, I don’t believe they are always the best probate-avoidance device for all property of all people in all situations. It’s up to you to determine whether a living trust is the best way for you to avoid probate for all your property, or whether you want to use other methods.

Besides the living trust, these are the most popular probate-avoidance methods:

• joint tenancy or tenancy by the entirety
• pay-on-death financial accounts
• transfer-on-death registrations
• transfer-on-death real estate deeds
• retirement accounts
• life insurance
• state laws that exempt certain (small) amounts of property left by will from probate, and
• gifts made while you are alive.

These methods are discussed briefly in Chapter 14.

You may wonder why surviving relatives and friends can’t just divide up your property as your will directs (or as you said you wanted, if you never got around to writing a will), and ignore the laws requiring probate. Some small estates are undoubtedly disposed of this way.

For example, say an older man lives his last few years in a nursing home. After his death, his children meet and divide the personal items their father had kept over the years. What little savings he has have long since been put into a joint account with the children anyway, so there’s no need for formalities there.

For this type of informal procedure to work, the family must be able to gain possession of all of the deceased’s property, agree on how to distribute it, and pay all the creditors. Gaining possession of property isn’t difficult when the only property left is personal effects and household items. However, if real estate, securities, bank accounts, cars, boats, or other property bearing legal title papers are involved, informal family property distribution can’t work.

Further, whenever outsiders are involved with a deceased’s property, do-it-yourself division by inheritors is not feasible. For instance, creditors can be an obstacle; a creditor concerned about being paid can usually file a court action to compel a probate proceeding.

Finally, for an informal family property disposition to work, all family members must agree on how to divide the deceased’s possessions. Any inheritor who is unhappy with the result can, like creditors, file for a formal probate.

In sum, informal probate avoidance, even for a small estate, isn’t something you can count on. Realistically, you must plan ahead to avoid probate.

RESOURCE
More on avoiding probate. These and other probate-avoidance techniques are discussed in detail in Plan Your Estate, by Denis Clifford (Nolo), and 8 Ways to Avoid Probate, by Mary Randolph (Nolo).

Living Trusts and Estate Taxes

Probate-avoidance living trusts, like those you can make with this book, don’t eliminate or reduce estate or inheritance taxes. However, very few people need to worry about federal estate taxes. Current federal law exempts more than $12 million per person from estate tax, so no tax will be assessed against the estates of most readers of this book. In a few states, state inheritance taxes or state estate taxes with lower exemptions could affect more modest estates, but there is not much you can do to avoid them. Chapter 14 provides details about federal estate taxes, as well as state inheritance and estate taxes.

Other Advantages of a Living Trust

As you know, the main reason for setting up a revocable living trust is to save your family time and money by avoiding probate. But there are also other advantages. Here is a brief rundown of the other major benefits of a living trust.

Out-of-State Real Estate Doesn’t Have to Be Probated in That State

The only thing worse than regular probate is out-of- state probate. Usually, an estate is probated in the probate court of the county where the decedent was living before the decedent died. But if the decedent owned real estate in more than one state, it’s usually necessary to have a whole separate probate proceeding in each one. That means the surviving relatives must find and hire a lawyer in each state, and pay for multiple probate proceedings.

With a living trust, out-of-state property can normally be transferred to the beneficiaries without probate in that state.

You Can Avoid the Need for a Conservatorship

A living trust can be useful if the person who created it (the grantor) becomes incapacitated, because of physical or mental illness, and can no longer take care of financial affairs. In that situation, the person named in the living trust document to take over as trustee at the grantor’s death (the successor trustee) can also take over management of the trust. (See Chapter 6.) When a couple sets up a trust, if one person becomes incapacitated, the other takes sole responsibility. If both members of the couple are incapacitated, their successor trustee takes over. The person who takes over has authority to manage all property in the trust, and to use it for the benefit of the grantor or grantors.

Example: Wei creates a revocable living trust, appointing herself as trustee. The trust document states that if she becomes incapacitated, her daughter Li-Shan will replace her as trustee and manage the trust property for Wei’s benefit.

If there is no living trust and no other arrangements have been made for someone to take over property management if you become incapacitated, someone must get legal authority from a court to take over. Typically, the spouse, partner, or adult child of the per- son seeks this authority and is called a “conservator” or “guardian.” Conservatorship proceedings are intrusive and often expensive, and they get a court involved in your personal finances on a continuing basis.

Financial Durable Power of Attorney
You should also give your successor trustee (or spouse) the authority to manage property that has not been transferred to the trust if you become incapacitated. The best way to do that is to prepare and sign a “durable power of attorney for finances.” (See Chapter 14.)

 

Your successor trustee has no power to make health care decisions for you if you become incapacitated. If you have any end-of-life preferences—like to die without the unauthorized use of a life support system—you’ll want to prepare and sign health care directives. (See Chapter 14.)

Your Estate Plan Remains Confidential

When your will is filed with the probate court after you die, it becomes a matter of public record. A living trust, on the other hand, is a private document. Because the living trust document is never filed with a court or another government entity, what you leave, and to whom, generally remains private. There are just a couple of exceptions. First, records of real estate transfers are always public, so if your successor trustee transfers real estate to a beneficiary after your death, there will be a public record of it. Second, many states require the successor trustee to disclose information about your living trust to trust beneficiaries. These requirements are explained in Chapter 13.

A few states require that you register your living trust with the local court, but there are no legal consequences or penalties if you don’t. Also, registration of a living trust normally requires that you just file a paper stating the existence of the trust and the main players; you don’t file the document itself, so the terms aren’t part of the public record. Registration is explained further in Chapter 11.

In most cases, the only way the terms of a living trust might become public is if—and this is very unlikely—after your death, someone files a lawsuit to challenge the trust or collect a court judgment you owe them.

You Can Change Your Mind at Any Time

You have complete control over your revocable living trust and all the property you transfer to it. You can:

• sell, mortgage, or give away property in the trust
• put ownership of trust property back in your own name
• add property to the trust
• change the beneficiaries
• name a different successor trustee (the person who distributes trust property after your death), or
• revoke the trust completely.

If you and your spouse or partner create the trust together, both of you must consent to changes, although either of you can revoke the trust entirely. (See Chapter 12.)

No Trust Record Keeping Is Required While You Are Alive

Even after you create a valid trust that will avoid probate after your death, you don’t have to maintain separate trust records. This means you don’t have to keep a separate trust bank account, maintain trust financial records, or spend any time on trust paperwork.

As long as you remain the trustee of your trust, the IRS doesn’t require that a separate trust income tax return be filed. (IRS Reg. § 1.671-4.) You don’t have to obtain a trust taxpayer ID number. You report all trust transactions on your regular income tax returns. In sum, for tax purposes, living trusts don’t exist while you live.

You Can Name Someone to Manage Trust Property for Young Beneficiaries

If there’s a possibility that any of your beneficiaries will inherit trust property while still young (not yet 35), you may want to arrange to have someone manage that property for them until they’re older. If they might inherit before they’re legally adults (age 18), you should definitely arrange for management. Minors are not allowed to legally control significant amounts of property, and if you haven’t provided someone to do it, a court will have to appoint a property guardian.

When you create a living trust with this book, you can arrange for someone to manage property for a young beneficiary. In most states, you have two options:

• Have your successor trustee (or your spouse, if you created a shared living trust) manage the property in a child’s trust until the child reaches an age you designate.
• Appoint an adult as a “custodian” to manage the property until the child reaches an age specified by your state’s Uniform Transfers to Minors Act (18 in a few states, 21 in most, but up to 25 or 30 in a few).

Both methods are explained in Chapter 8.

No Lawyer Is Necessary to Distribute Your Property

With a living trust, the person you named as your successor trustee has total control over how the property is transferred to the beneficiaries you named in the trust document. With a will, the executor is technically in charge of the property that passes under the terms of the will, but the probate lawyer usually runs the show. This can include the personal show as well as the silly court show. I’ve heard of a lawyer calling a family in for a reading of the deceased’s will immediately after the funeral service, which some family members found highly insensitive. There’s much less chance of this type of crassness if only close personal relations are involved in the transfer of the property.

Possible Drawbacks of a Living Trust

A basic living trust can have some drawbacks. They aren’t significant to most people, but you should be aware of them before you create a living trust.

Initial Paperwork

Setting up a living trust requires some paperwork. The first step is to create a trust document, which you must have notarized. So far, this is the same amount of work as is required to write a will (except wills require witnesses instead of a notary).

There is, however, one more essential step to make your living trust effective. You must make sure that ownership of all the property you listed in the trust document is legally transferred to the living trust. Transferring property into your trust is simply a matter of doing the paperwork correctly. What you have to do depends on the kind of property you’re putting in the trust:

• If an item of property doesn’t have a title (ownership) document, then in most states, listing it in the trust document is enough to transfer it. So, for example, no additional paperwork is legally required for most books, furniture, electronics, jewelry, appliances, musical instruments, paintings, and many other kinds of property.
• If an item has a title document—real estate, stocks, mutual funds, bonds, money market accounts, or vehicles, for example—you must change the title document to show that the property is owned by the trustee of the trust. For example, if you want to put your house into your living trust, you must prepare and sign a new deed, transferring ownership from you to your living trust.

After the trust is created, you must keep written records sufficient to identify what’s in and out of the trust whenever you transfer property to or from the trust. This isn’t burdensome unless you’re frequently transferring property in and out, which is rare.

Example: Misha and David Feldman put their house in a living trust to avoid probate, but later decide to sell it. In the real estate contract and deed transferring ownership to the new owners, Misha and David sign their names “as trustees of the Misha and David Feldman Revocable Living Trust, dated March 18, 20xx.”

See Chapter 10 for more about how to transfer property into your trust.

Transfer Taxes

Transfers of real estate to revocable living trusts are almost always exempt from transfer taxes usually imposed on real estate transfers.

If you’re the cautious type, you can check with your county tax assessor to learn if there will be any transfer tax imposed on the transfer of your real estate to your trust. Your county land records office (county recorder’s office or registry of deeds) may also be able to provide this information. As I’ve said, you’re very likely to learn that no tax is imposed. If there is a tax but it is minor, it may impose no serious burden on creating your trust. If the tax is substantial, you may decide it’s too costly to place your real estate in a trust.

Difficulty Refinancing Trust Real Estate

Because legal title to trust real estate is held in the name of the trustee of the living trust—not your name—some banks, and especially title companies, may balk if you want to refinance it. They should be sufficiently reassured if you show them a copy of your trust document, which specifically gives you, as trustee, the power to borrow against trust property.

In the unlikely event you can’t convince an uncooperative lender to deal with you in your capacity as trustee, you’ll have to find another lender (which shouldn’t be hard) or simply transfer the property out of the trust and back into your name. Later, after you refinance, you can transfer it back into the living trust. It’s a silly process, but one that does work.

No Cutoff of Creditors’ Claims

Those without significant debt don’t have to worry that after their death creditors will try to collect large debts from property in their estate. Usually, any outstanding bills, taxes, and last illness and funeral expenses, can be readily paid from the deceased’s property. However, if you do have debts and are concerned about the possibility of large claims, you may want to let your property go through probate instead of a living trust.

If your property goes through probate, creditors have only a set amount of time to file claims against your estate. A creditor who was properly notified of the probate court proceeding can’t file a claim after the period—about six months, in most states—expires.

Example: Elaine is a real estate investor with a good-sized portfolio of property. She has many creditors and is involved in a couple of lawsuits. It’s sensible for her to have her estate transferred by a probate court procedure, which allows creditors to present claims, resolves conflicts, and cuts off the claims of creditors who are notified of the probate proceeding but don’t present timely claims.

On the other hand, when property isn’t probated, creditors still have the right to be paid (if the debt is valid) from that property. In most states, there is no formal claim procedure. (California has enacted a statutory scheme for creditors to get at property transferred by living trust.) The creditor may not know who inherited the deceased debtor’s property, and once the property is found, the creditor may have to file a lawsuit, which may not be worth the time and expense.

If you want to take advantage of probate’s creditor cutoff, you must let all your property pass through probate. If you don’t, there’s a good chance the creditor could still sue (even after the probate claim cutoff) and try to collect from the property that didn’t go through probate and passed instead through your living trust.

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