Living trusts are a tool for transferring assets to your heirs without going through probate. Legally, trust assets don't belong to you, so they avoid probate. If you appoint yourself as the trustee, you can continue to control the assets while you're alive. Even childless couples may benefit from a living trust, but the advantages may not be worth the time and effort involved in setting one up.
If you plan to leave the bulk of your property to each other, the Nolo legal website states a living trust offers few advantages over a will, particularly if you're under 50 and in good health. Assets you own jointly will pass automatically to the survivor if one of you dies without going through probate. A trust doesn't dispense with the need for a will, either: You'll need a will to dispose of personal, non-asset items such as books or clothes.
A living trust does one thing a will cannot: If you or your spouse is incapacitated, the successor trustee you've chosen can manage the assets for you. The successor trustee can pay bills and the mortgage, and make investment decisions while you're unable to do so. If you and your spouse share a joint checking account and joint ownership of assets, however, he may be able to manage your affairs without one.
A trust is useless unless you and your spouse transfer your assets into it. That may require a lot of paperwork: Transferring title to real estate to the trust; filling out forms at your bank and brokerage; and repeating the process as you acquire more assets later. If you later want to sell or refinance your house, you'll have to transfer ownership back to yourself first. Consider the work involved when deciding if setting up a trust is worth it.
If you're worried about being unable to manage your affairs, a power of attorney might be a good alternative. A power of attorney can authorize someone to manage your finances when you're incapacitated, but it doesn't require the advance planning a trust does. You should also check out your state's probate procedure and find out how it works. Many states have simplified and speeded up probate so that it won't take long except for extremely valuable estates.
- Nolo: Why You May Not Need a Living Trust
- Nolo: Make a Living Trust -- A Quick Checklist
- HG.org Legal Resources. "What Is Ancillary Probate?" Accessed Oct. 7, 2020.
- American Bar Association. "Glossary of Estate Planning Terms." Accessed Oct. 7, 2020.
- County of Charlevoix, Michigan. "Conservatorships of Minors." Accessed Oct. 7, 2020.
- HG.org Legal Resources. "Types of Wills and Testaments." Accessed Oct. 7, 2020.
A graduate of Oberlin College, Fraser Sherman began writing in 1981. Since then he's researched and written newspaper and magazine stories on city government, court cases, business, real estate and finance, the uses of new technologies and film history. Sherman has worked for more than a decade as a newspaper reporter, and his magazine articles have been published in "Newsweek," "Air & Space," "Backpacker" and "Boys' Life." Sherman is also the author of three film reference books, with a fourth currently under way.