Married couples generally want to share everything with each other. With regard to property, married couples often open joint bank accounts and are co-owners of real property. A joint living trust can be a useful estate planning device for married couples.
Married couples have options when deciding to use a trust as their estate plan. Each spouse can have a trust. The couple could also create a joint trust that holds all of the marital assets. In general, when one spouse dies, the assets in the trust vest in the surviving spouse. A joint trust is handy for placement of jointly-held property. However, individual trusts pose problems for jointly-held property. The individual trust would only hold a particular spouse's interest, which may require splitting title and recording multiple deeds.
Living Trust Advantages
In a joint living trust, both spouses retain control and possession over the property held by the trust. This allows the couple to use the property as if the trust does not exist. However, if one or both spouses die or become incapacitated, the trust should contain provisions about how the property should be managed. Additionally, joint trusts promote shared use and ownership of the property, which can help strengthen and refine the marital union.
Joint living trusts do not offer much with regard to creditor protection. The claims of one spouse’s creditor may be able to attach to property of the other spouse, especially if that property is held in the joint trust. Additionally, both spouses act as co-trustee to the living trust and both have the ability to revoke or modify the terms of the trust. Problems may arise if the spouses do not trust each other or if the marital relationship sours.
Setting up a joint living trust is a legal process and spouses must draft a declaration of trust and transfer property into the name of that trust. The declaration of trust must comply with relevant state laws. A joint living trust is not suitable for every situation and other estate planning options exist. To avoid potential problems, spouses should seek independent legal advice.