Blog

Your Family Deserves a Trust

Unlike a Will, a Living Trust is a vehicle that carries your assets during your lifetime and eventually transfers them to the persons of your choosing, privately and on your own terms, without your family being forced to hire a lawyer and go to court to make it happen. Living Trusts can hold title to your real estate, companies, financial investments and almost any other asset you might acquire in the future and that you wish to protect from court administration and from the adverse circumstances that your heirs may have at the time.  Here are some of the major reasons why your family will be better off if you set up a Living Trust for them now:

Avoiding Probate

Your estate, or everything that belongs to you when you die, is within the jurisdiction of the Probate Court where your Will is used as evidence of how you wanted your assets to be distributed and who you wanted to be in charge of that process (your “Personal Representative”).  Your assets are inventoried, potential heirs and creditors must be notified, and an official notice is published in the newspaper for 90 days. Since Probate is an open, public court proceeding, anyone who feels they are entitled to something or who disagrees with how your Personal Representative is handling things (including the judge) can have their day in court and your estate’s assets will be used to pay any legal fees and costs incurred by your Personal Representative throughout the process.  By transferring assets to a Living Trust during your lifetime, they are kept out of your estate when you die because they legally no longer belong to you.  You have full control as “Trustee” of your Living Trust.  If you became unable to manage the Trust, your chosen successor Trustee(s) automatically take over and act according to your rules, as opposed to the default plan set forth by the government.  

Avoiding Guardianship

Since a Will goes into effect only after you die, the Personal Representative named in your Will cannot take charge if an illness or accident suddenly leaves you incapacitated.  In fact, without proper planning, no one can act on your behalf to manage your affairs until the court conducts guardianship proceedings to appoint a legal guardian which, like probate, can be a long, expensive, public process where any interested party has a right to be heard in court and express their opinion regarding who should or should not be your guardian.  The successor Trustee for your Living Trust takes over not only when you die, but also during any period of incapacity, thereby removing your assets from the reach of an unintended legal guardian or misguided judge.

Extended Administration

Unlike a Will, a Living Trust lets you predetermine when and how your heirs receive your assets, for example you can stipulate that:

  • Minors must wait until the age of X, as opposed to their eighteenth birthday.
  • Partial distribution at age X and the rest being distributed after a “cooling off” period at age Y, instead of all in one lump sum.
  • Some or all the assets are held back until after they graduate from college.
  • No distributions unless they pass a drug test.
  • Limited distributions to your spouse during their lifetime, and the remainder distributed to your children.
  • Etc., etc., etc.

Choosing Who Oversees What

Without a Living Trust, a court appointed Personal Representative will be in charge of handling your entire estate until everything is distributed and the estate is closed.  Distributions to minors, for example, can require further court proceedings and for practical purposes the child’s parent has control of the assets.  A Living Trust allows you to appoint one or more Trustees and spell out what powers and discretion you want them to have.  You can name backups and even stipulate that different Trustees are in charge of different shares or during different periods of time.

Protecting your Heirs from Predators, Lawsuits and Mistakes in Judgment

Without a Living Trust your heirs will receive their inheritance directly, regardless of their present or future shortcomings, bad influences, or legal claims against them.  If your heirs get into an accident and are sued, or if they get divorced, for example, someone else may claim those assets.  Using a carefully drafted Living Trust, your heirs can have the benefit of their inheritance while keeping it beyond the reach of those who might want to take it away from them.

Pitfalls of Joint Ownership

Some people try to avoid Probate by transferring their assets to someone else or holding them together with others as joint owners with rights of survivorship.  While this does avoid Probate, your co-owner’s lack of asset protection planning could still leave “your” property exposed to the consequences of an unplanned death, bankruptcy, divorce, or lawsuit against your joint owner.  If one of the owners becomes incapacitated, joint assets can also be tied up in court and one of you will end up having to deal with whoever becomes the other’s legal guardian.  You may even need to report the transfer on a gift tax return because the IRS treats “adding” a co-owner on title to an asset as a taxable gift of half the value of the asset.  Not so with a Living Trust.

Getting Started

The process to create a Living Trust is simple and easy because you only need to meet with us twice, we do all the work, and it’s charged as a flat fee.  At our first meeting over the phone or videoconference, we discuss issues such as those described above and others to determine precisely how you want things to be handled under various scenarios that you may have already contemplated, as well as others that you may have not yet thought of.  With over 20 years of practice, we have seen a lot of scenarios!  We then draft a fully customized Living Trust document for you to review with us or on your own.  After ensuring the document addresses any remaining questions or concerns, we coordinate the second meeting at our office to sign the trust with the required legal formalities, such as notaries and witnesses. 

Your trust is then ready to hold your assets during any crisis and for generations to come if need be, so you can have the peace of mind that you have done your best to protect your family in the event of an unexpected accident or illness.

Contact Us

Contact us at 305-444-7662 or e-mail Ed@AristaLaw.com to schedule a confidential meeting in person, over the phone or videoconference to start setting up your Trust now.

More than 20 years helping American and multinational families reduce their tax burden, protect their businesses and assets from legal risks, and plan for the eventual transfer of their wealth.