A Revocable Trust provides many potential benefits most of the time. Examples of some of the benefits of having a Trust include:
Minimizing lawsuits. When a person dies with a Will only, that Will must be filed with the Clerk. Trusts, on the other hand, are intended to be private documents even after the death of the Testator/Testatrix, and so potential beneficiaries (or claimants) do not have such easy access to the contents of a Trust compared to those of a Will. Therefore, the frequency with which Trusts are contested is far less than the frequency with which Wills are contested.
Having some “control” over your assets after you are no longer here, including the ability to leave instructions for the distribution of your assets to your beneficiaries. If you have a beneficiary(ies) for whom you would like to reduce or eliminate the time and cost of dealing with probate after you’re gone, or if you have an irresponsible beneficiary, or if you have a minor or disabled beneficiary(ies) or one with special needs, or if you have a beneficiary(ies) whom you would like to encourage to obtain a college degree (for example trust instructions that say something like: 1/2 at age 24 or upon attaining a 4 year degree, and, ½ upon attaining the age of 30 years), or if you have a beneficiary who has an addiction problem, or if you have a beneficiary whom you would like to protect from a possible future divorce or other financial threat, then you may leave specific instructions in a trust, to be privately administered by a Trustee of your choice. Such a Trust is drafted to provide your Trustee with instructions about who your beneficiaries are, how your assets are to be administered, and when and how they are to be distributed.
Designating a disability trustee to administer your assets if needed. Many of us will go through a period of disability before we die. Your Disability Trustee is the person who will take over the management or administration of the assets funded in your Trust should you become disabled. If a person does not have a Trust, but has a Durable Power of Attorney, their attorney in fact may use their authority under the DPOA to administer assets whether they are incapacitated or not. Therefore, assets funded in a Trust have an additional layer of protection inasmuch as as the Trustee does not have any power over those assets until the Grantor becomes disabled.
Reducing or eliminating the need for Probate. When a person dies owning assets titled in the name of their Trust, the chances of having their estate probated will usually be minimized if not avoided. However, some examples where probate may nonetheless be required are when a creditor opens a probate in order to file a claim against the estate, or, when a title company during the purchase of the decedent’s real estate requests that the Probate Court issue an Order Determining Homestead.
Not funding your Trust properly. When a person dies and does not properly fund their Trust, or does not have any alternative means of having certain property pass to their beneficiaries outright (such as leaving a beneficiary designation to an adult beneficiary on an account), then any such assets will have to be probated.
While having a Revocable Trust that is properly funded cannot guarantee that probate will always be avoided, the reality is that most of the time, the many benefits of having a Trust are usually accomplished through the proper use of a Revocable Trust, and far outweigh the potential detriments of not having such a Trust.
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