Living Trust FAQs

If you own your house, you need a living trust. If you are married and own your house together, you should create a family/marital trust. If you want to set up a trust fund for someone or give someone the right to live in your house after you die (but not own it outright), you need a living trust. And most importantly, if you want to protect your assets from going through probate, you need a living trust. Have an experienced estate planning attorney prepare your living trust.

The main benefit of a living trust is that assets that pass through your living trust avoid probate, thus allowing quick and easy transfer to your loved ones. If you are married and create a family/marital trust, there may be estate tax advantages for the surviving spouse. And a living trust is a document that protects your privacy (unlike a will which is filed with the court and is part of the public record anyone can see).

Yes, you should transfer your house to your living trust. By filing a trust transfer deed with the county where your house is located, you ensure your house will pass through your trust and not be subject to probate. This will save thousands of dollars that can go to your loved ones and not to lawyers or the court. But you want to be sure the transfer is handled correctly to avoid possible reassessment of your property taxes. And make sure to have an experienced estate planning attorney handle the transfer of your house into your trust in order to avoid title problems when the house is eventually sold and to avoid probate.

No, everyone who owns their house, land or even a manufactured home needs a living trust. There are many people who do not have a lot of money in the bank, but they own their house or manufactured home when they pass away. You do not have to be “wealthy” to benefit from a living trust. And your loved ones will thank you later when they do not have to go to probate.

If you already have a living trust or family/marital trust and you want to update it, the best way to do this is by a restatement. A restatement allows you to “republish” your trust and replace the original trust, thus updating the entire document, including your distribution plan and naming your trustee, but without creating a whole new trust. Also with a restatement, all assets currently titled in your trust stay exactly the way they are (no need to re-title existing trust assets, like your house). With an amendment, you only update one part of your trust but the original trust document stays in place. The biggest advantage to a restatement over an amendment is that when it comes time to administer your trust, your beneficiaries and heirs only see the most current restatement. With an amendment, your beneficiaries and heirs see the original trust document and all subsequent amendments, so if you treated them differently in the amendment, they will know it. A restatement protects your privacy and avoids the unpleasant disclosure to beneficiaries of changes in your distribution plan.