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Will Your Will Avoid Probate?

By: Berber

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What does "living trust will" mean? It's not really a legal term. Even so, when people start to check out living trusts, it is a term they commonly use. People are used to having a will distribute property after the death of the person making out the will. To the novice, a will and a living trust look like they do the same thing, so naturally people become mixed up and use the term "living trust will."

In a sense, a living trust is a substitute for the standard will. A living trust and a will are two separate items. So, as an attorney, I will probably not know what someone wants, if they ask about a "living trust will."A living trust is a different legal document from a will. A special type of will, a "pour over will," always accompanies a living trust. Utilizing a pour over will with a living trust provides a safeguard.

Sometimes living trusts are known as --"living revocable trust" or "revocable living trusts". The key here is that they are revocable. Being able to change or rescind the trust at any time is a key element of the revocable living trust. Heirs will receive a larger inheritance, avoid probate and reduce estate taxes by using living trusts. In order to prevent a probate proceeding, a trust must be correctly set up and managed.

Even though a trust can avoid probate, most do not. Because so many trusts fail to give the protection from probate that the client thought they were getting, the legal community has raised many bona fide arguments against them. The trust is not the difficulty. The way attorneys are educating their clients is the problem. Clients will not know how to avoid probate unless they are educated on how to "use their living trust.

When the living trust fails to protect the family against probate, the deceased's assets need to be probated. Going through a long legal process at the probate court will be necessary at this point. In the probate process, the probate court depends upon the will to understand the deceased's wishes. When there is no will, it becomes what is called an "intestate" proceeding. The definition of "intestate" is that the deceased died without a will.

A living revocable trust should be implemented with a pour over will. If for some reason assets need to be probated, the pour over will can be used by the probate court to guide the probate process. When the trust performs as intended and probate is avoided, the pour over will won't be needed.

A standard will distributes the property outright, unlike the pour over will which does not. When property needs to be probated, the pour over will tells the court that all of the property should be "poured over" into the living revocable trust, and then distributed as outlined in the living trust. Lee R. Phillips' new book, Guaranteed Millionaire discusses revocable living trusts and pour over wills in detail.

Article Source: http://depositarticles.com/

For more information on living trust wills please visit our website above and get a free 90 minute informational DVD.

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