The Advantages of a Living Trust Over a Last Will & Testament

One of the most difficult decisions for a person planning to distribute assets after death is whether to make a will or create a living trust. Wills are more common and usually satisfactory for those who do not leave behind a significant amount of property. For owners of large estates, however, the advantages of a living trust deserve careful consideration.

  1. Avoiding Probate Delays

    • Perhaps the primary advantage of a living trust over a will is that the living trust avoids probate court, which is usually lengthy and expensive. Probate is when a judge ensures that the deceased's creditors are paid and his remaining property is distributed among his beneficiaries. Often this process can take many months. A living trust avoids this by having a trustee, whom the grantor (the person who set up the trust) names to act on his behalf, distribute the assets of the trust after the grantor's death. Often an estate can be settled within a few weeks instead of months with a living trust, according to the legal-advice website Nolo.com.

    Fewer Fees

    • Since a living trust does not go through probate, it avoids the court fees and attorney's fees in the probate process, which can reach as high as 6 to 10 percent of the estate, according to kiplinger.com. However, the amount of money saved by having a living trust instead of a will varies depending on where a will is probated, since the probate process is more costly in some states than others.

    Possible Tax Advantage

    • By creating a type of living trust called an AB trust, a married couple that leaves behind significant wealth can often reduce the estate taxes that the beneficiaries must pay. For example, if a couple has an estate worth $4 million and one spouse died in 2009, her share of the estate would be valued at $2 million. Since this is under the 2009 estate tax threshold of $3.5 million, no estate taxes would be due. However, AB trusts have some disadvantages that must be noted. Since the terms of an AB trust cannot be changed once a spouse has died, this type of trust is unwise if one spouse is likely to survive the other by many years. Also, the surviving spouse has only limited rights to the property in the trust after the other spouse dies.

    Privacy

    • Another advantage of a living trust is that, unlike a will, it usually does not become part of the public record, according to the American Bar Association. Although there are a few exceptions to this, a living trust can be a great help to people who don't want their financial matters open to prying eyes.

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