A living trust is an estate planning strategy that can be an important tool in helping you reach your estate planning goals. Just like with a will, with a living trust you can leave property to your loved ones. However, unlike with a will, with a living trust you can transfer the property while you are still living. In addition, unlike property that you transfer with a will, property that you transfer with a living trust is not subject to probate. To learn more about how a living trust would benefit you and your family, contact an experienced Suffolk County living trust lawyer at the Law Offices of Stephen Bilkis & Associates.
Living trustA trust is an estate planning vehicle that holds property for the benefit of another person. A trust can be a living trust or a testamentary trust. A living trust is created and funded while you as the grantor are still living. A testamentary trust is created and funded upon the testator's death. For example, your will can provide that upon your death you leave a cash gift to your minor niece to be used for education expenses. Until you die, there is no gift to your niece. On the other hand, you can set up a living trust immediately with your niece as the beneficiary.
Probate avoidanceOne the most common reasons that people choose to set up living trusts is to avoid probate. Unlike property that is transferred via a last will and testament, property that is transferred to a living trust does not have to go through probate. Probate is the court-supervised process of settling your estate and distributing your assets. In New York the Surrogate’s Court has jurisdiction over probate matters.
One reason to avoid probate is that probate takes a lot of time. In New York most probate cases take at a minimum of 9 months. If there are complications such as will contests or other types of disputes during the process, probate can extend well beyond 9 months. Another reason to avoid probate is that it is expensive. The executor is entitled to a fee. There are also court fees. If there is litigation, the estate may be responsible for paying attorney fees. As a result of fees and expenses, the value of the estate diminishes, leaving fewer assets to distribute to beneficiaries. To learn more about probate and its impact on an estate, contact an experienced living trust attorney in Suffolk County.
Only property that is classified as “probate property” is subject to probate. When you transfer property to a living trust during your life time, it is no longer your property and no longer part of your probate estate. Upon your death the trustee your name, or the successor trustee will simply transfer ownership of the property to the beneficiaries you named in the trust documentation. The timeframe for this typically takes just a few weeks, and there is little cost associated with this. Once all the property has been transferred to the beneficiaries, the living trust ceases to exist.
However, your living trust can extend long after your death. While you may want to set it up so that the assets are distributed to your beneficiaries immediately upon your death, you can set it up so that it benefits minor children and grandchildren. Distribution of assets might be delayed until they reach majority. You have great flexibility as to how and when you choose the assets in the trust to be distributed. If beneficiaries of your living trust predecease you, the property reverts to you, unless you name contingent beneficiaries for those gifts.
Control and living trustsWhen you create your living trust, you can name yourself as the trustee. This allows you to retain control over the trust assets during your lifetime. You can do anything with the assets that you could do before you transferred the assets to the trust. You can buy and sell assets. You can use the assets. You can add beneficiaries or remove them. You can change the trust or even revoke it. As long as you are mentally competent you have complete control over your living trust.
However, once you pass away your living trust become irrevocable and cannot be changed. It is important that you name a successor trustee. When you pass away, your successor trustee will take over as trustee and will be responsible for managing the trust and distributing assets to your beneficiaries based on the terms of the trust.
Incapacity planning and living trustsAnother benefit that a living trust can offer you that a will cannot relates to planning for incapacity. If you become incapacitated, your successor trustee takes over management of your trust. Your trust can have a provision that allows your successor trustee to manage your affairs for the duration of your incapacity. This will allow the relatively smooth transition from you managing your money and other property that is in the trust to your trustee managing it on your behalf. On the other hand, if you did not set up a trust and transfer your property to it, then the Surrogate’s Court may have to step in and appoint a guardian to manage your affairs. A guardianship procedure takes time and is expensive. Your estate may be negatively impacted if no one is managing your assets during the time that it will take to establish a guardian.
In your trust document, with the help of an experienced Suffolk County living trust lawyer, you can list criteria which will determine incapacity. For example, you may want to require a letter from your doctor stating that you are mentally incapacity before your successor trustee has the legal authority to take over as trustee. You can also include provision that should you regain mental capacity, you resume your role as trustee.
You incapacity planning should not be limited to executing a living trust. You should also consider having a durable power of attorney for finances. This will allow the agent you name in the power of attorney to manage assets that you may not have funded into the trust. Otherwise a guardianship proceeding may still be required.
Privacy and living trustsAnother advantage a living trust has over a will is that a trusts afford the creator of a trust and the beneficiaries privacy that a will does not. After your death under New York Estates, Powers and Trusts Law, your will must be filed with the Surrogate’s Court in the county in which you lived at the time of your death. Typically it is the executor who files the will along with a petition for probate. Once your will has been filed with the Surrogate’s Court, it becomes a matter of public record. Anyone who wants to see it can. While your will may not end up online or in magazines like the wills of some celebrities, curious friends and relatives can go to the Surrogate’s Court and get a copy of your will.
Living trust afford privacy because they do not need to be filed with the court. The Surrogate’s Court is not involved in the transfer of trust assets to beneficiaries. The trustee must simply distribute trust assets based on the instructions in the trust document without first being required to get approval from the court.
An exception to this general rule is where there is litigation over the trust. If this happens, the trust document will likely become part of the public record of the lawsuit.
Funding a living trustYou can transfer almost any property to a living trust. Commonly property held be living trusts includes real estate, stocks, CDs, bank accounts, investments, jewelry, clothes, art, and furniture.
In order for you and your loved ones to reap the benefits of a living trust, you must transfer your assets to it during your lifetime. To do this you must retitle your property and accounts in the name of the trust. Depending on the type of property, there are different steps that you must go through in order to effectively transfer title. To make sure this is done properly, seek the advice of an experienced Suffolk County living trust lawyer.
You should also create a 'pour-over' will. This is special type of last will and testament that essentially states that any assets not already in the trust should be transferred to it when you die. However, in this situation the assets must still go through probate.
Contact the Law Offices of Stephen Bilkis & AssociatesBecause there are many different types of living trusts, in order to make sure your trust meets your goals, it must be set up properly. To learn more about living trusts, wills and other estate planning documents, contact an experienced living trust attorney serving Suffolk County at the Law Offices of Stephen Bilkis & Associates. We will help create a trust for you that is consistent with your specific goals. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Suffolk County, Staten Island, Nassau County, Brooklyn, Manhattan, Queens, Long Island, Bronx, and Westchester County.