FAQs About Trusts

Q. Can I avoid probate with a living trust?

In many instances the answer is yes. However, the cost of buying a living trust and transferring your assets into the trust may well exceed any probate costs you may encounter. Your assets must be properly transferred into the trust. If they are not, you might not avoid probate. Even if you have a proper trust, you still need a will to cover property you might have missed or which is later acquired and never transferred into the trust.

Q. How Does a Living Trust Help if I Am Incapacitated?

If you are acting as trustee of your own living trust and become incapacitated, whoever you have named as your successor trustee will assume the responsibility for managing your assets on your behalf. If your assets are not in your living trust, someone else must manage them. How this is accomplished may depend on whether the assets are your separate or community property.

Q. If I Have a Living Trust, Do I Still Need a Will?

Yes. Your will affects any assets which, for one reason or another, were held in your name alone at your death and not in your living trust or in some other form of ownership. With the living trust, your will usually contains as its primary provision for the distribution of your estate, a "pour over" provision, which simply directs that any assets held in your name be transferred at your death to your living trust. Of course, a probate is not avoided with respect to those assets which are transferred to your living trust by your will.

Q. What Other Kinds of Trusts Are There?

Testamentary trusts are trusts which are set forth in your will and which, therefore, cannot provide for any management of your assets during your lifetime. Testamentary trusts can, however, provide for young children and others who need management of their assets after your death.

Irrevocable trusts are trusts which, immediately upon their creation, are not amendable or revocable by you. These are generally tax-sensitive documents. Some examples include irrevocable life insurance trusts, irrevocable trusts for children, and charitable trusts. A qualified estate planning lawyer should be consulted with respect to these documents.

Contact our New York Trusts Lawyers for your questions about wills legal options