A living trust can make an important part – in many cases, the most important part – of a person’s estate plan. Not everyone, however, may need a living trust. The greater the risk of incapacity or death, the greater the need for a living trust. The greater the value of your assets, particularly if they include real estate, the greater the need for a living trust. A young, healthy person with few assets probably does not need a living trust right now.
An individual or real estate investor who is often buying, selling, or refinancing their real estate holdings don’t need a living trust to hold those assets. On the other hand, many people recognize that a living trust becomes helpful in the future, and so they set it up ahead of time to have it in place in the event of an accident or sudden illness. Read on to learn what is a living trust and how to easily set it up in California.
What is a Living Trust?
A living trust is a legal document established during a person’s lifetime which specifies the management of their personal property before and after their death. The document also provides a plan for how those assets, and the income earned by the trust, are distributed after their death. Once the trust is established, all the assets of the person who created the trust ought to be transferred into the trust.
Having joint living trusts is also possible. They simply combine the assets of a husband and wife into one single trust, governed by one document.
Trusts are usually revocable, which means that the person establishing the trust can make changes to it at any time as long as they are competent to do so. In any type of living trust, the person establishing the trust is the trustee – the person who manages the trust.
The trust also names a successor trustee as per trust rules. If the person establishing the trust should become incapacitated or disabled, the trust is in place to manage their financial affairs, and the successor trustee can then take over the management of the trust. Property in trust is not subject to probate.
When a living trust has been properly established and an individual has put their assets in the trust, the living trust will enable the estate to avoid probate in California. A simple living trust will also avoid the necessity of a court conservatorship should an individual who has established a trust become incapacitated.
There are many benefits of having a revocable living trust. This estate planning tool should be considered by individuals and couples who own real property or whose assets exceed $166,250.
Creating a Living Trust: How to Easily Set It Up in California
Creating a living trust for your entire estate is typically not a costly process. Therefore, it’s a process that you can complete on your own if you have few assets and are not providing for guardianship of minor children. That said, you should be thorough with listing your property and selecting your trustee before you start. Then, once you have an inventory of your assets, you can create your trust document.
Within your living trust, you should specify the exact property to be held, your appointed trustee, and your beneficiary. While seemingly simple, the court will rely on this document when interpreting any issues with your estate following your death. Therefore, it is important to ensure it conforms to California’s legal requirements.
After you have created your trust document, you must sign it in front of a notary public. Next, you will transfer the legal title to the trust property. The trustee will then have complete control over it. Remember: this legal transfer is required; otherwise, the trustee has no powers. Also, consider designating a successor trustee to take over in the case of the trustee’s death or incapacity. If you would like assistance creating or reviewing your trust document, you can contact A People’s Choice for high-quality non-attorney assistance. We can help you create a trust that is simple yet legally adequate to protect your estate.
Nuts and Bolts of Setting Up a California Living Trust
Why Have a Trust?
The biggest benefit of having trust is that it helps avoid probate. In California, estates with real property or estates valued over $166,250 usually have to be settled through some type of formal court probate process. This process is very costly and can take from 5 to 7 months to complete. With a trust, the administration of a trust after the death of the trustee is relatively simple and inexpensive.
Another benefit of having a trust is to manage the property if a person becomes incapacitated. A revocable living trust allows your successor trustee to take over whenever you become incapacitated. There is generally no interruption in the management of your property, and there is no requirement for a court-appointed conservator.
The three basic types of living trusts include:
- A probate-avoidance trust for an individual;
- A probate-avoidance trust for a couple who own property together; and
- A probate-avoidance and estate tax-saving AB trust for prosperous couples, typically couples with a net combined estate worth over $1.5 million.
No law specifies the form a living trust must take. Some attorney-created forms contain vast amounts of legal words, which serve little real-world purpose except to generate attorney’s fees. This varies from one estate planning attorney to the other.
Special Needs Trust
Special needs types of trusts are established to leave money or property to a loved one who has a disability, without jeopardizing that person’s ability to receive supplemental security income (SSI) and Medicaid benefits. Instead of leaving property directly to your loved one, you leave it to the special needs trust. The trustee named in the trust will have complete discretion over the trust property and will be in charge of spending money on your loved one’s behalf.
Your loved one will have no control over the money. As a result, SSI and Medicaid administrators will ignore the trust property for program eligibility purposes. The trustee can’t give money directly to your loved one but can spend trust assets to buy a variety of goods and services for your loved one such as:
- Personal care attendants
- Out-of-pocket medical and dental expenses
- Physical rehabilitation
- Home furnishings
- Vehicles, and other incidentals.
Sometimes clients find the words and terminology used in their estate documents to be a little confusing during probate proceedings. This blog article covers common terms used in wills and trust and will help you understand the meanings of words you may see in estate planning documents. We also have many other articles and additional options on our website covering living trusts, including this convenient California living trust checklist. To download a booklet published by the California State Bar on Trusts, click here.
Should I Make a California Living Trust?
Many individuals choose to create a living trust so their estate can avoid probate upon their death. Oftentimes, probate is an expensive and complicated process that your family has to take care of after you pass. Plus, if you create a living trust, you can make it revocable (not the case with trusts irrevocable). In other words, you have the option to change or terminate it at any time before you die.
That said, some people need a living trust more than others. For example, if a married couple without children wishes to be each other’s sole heirs, they will probably not require a living trust. However, if a couple has children, they should have a living trust. This document will allow them to pass on their estate and life insurance policies to their children in a simpler manner.
Keep in mind that in California, if your estate is worth $166,250 or less, you will not need a living trust to save on the legal process of probate. Instead, state law allows for a simplified probate for smaller estates. On the other hand, you may choose to create a will even if you have a valid living trust. Within your will, you can write a provision that allows for any property not identified in the trust to be transferred to it upon your death. Ultimately, you should take all steps possible to simplify your estate planning goals.
Reasons to Have a Living Trust
There are many reasons to have a living trust. The following are our top four benefits and reasons to have trust:
Trusts Save Money
One of the number one reasons to have a trust is to save the estate money. While setting up a trust may seem more expensive than creating a will, overall, the trust will cost your estate much less when it comes to distributing assets upon your death. Wills must go through probate which can be a costly and lengthy process. If you plan to leave significant assets (including bank accounts) to your family or friends, you should consider creating revocable trusts or an irrevocable living trust.
Trusts Save Time
There are many reasons people set up a trust. Not only is the probate of a will cost but it also takes time. It can easily take months and sometimes years to fully settle an estate through probate. One important reason people set up a trust is that if a person becomes incapacitated or passes away, whoever they designate as their successor trustee will take control of their estate with little to no court oversight. Trusts are usually administered within just a few months from the time of death.
Trusts Maintain Control
You do not lose control of your assets when you put them into a trust. In fact, with trust, you can easily keep control of your assets even after death. To do so, you must specifically state what you want to happen with your assets upon death and appoint a family member or friend to administer your trust assets as instructed.
Trusts Protect Against Creditors
With a will, you need to file a public notice of death to allow creditors the opportunity to file a claim for monies owed against your estate. However, the administration of a trust does not require public notice. Certain trusts offer protection against creditors and limit their reach in regard to trust assets.
When an asset within a trust is transferred to a beneficiary, the beneficiary may also get protection against creditors so long as the assets stay in the trust. With most living trusts, someone else, like a trusted friend, relative, or a professional trustee, will take over as trustee when you die or become incompetent.
Contact A People’s Choice for more information on how to create a living trust for yourself. There is a multitude of reasons to have a trust – from saving money to avoiding probate. To get started, just visit us here or contact us at 800-747-2780.
Contact A People’s Choice for more information on how to prepare a trust. There are a multitude of reasons to have a trust – from saving money to avoiding probate. Call us at 800-747-2780 for further information.