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Everyone should have a living trust, to avoid probate


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Living Trusts

Why a Living Trust?

Everyone needs and should have a living trust. If you have only a Will, that Will must be verified by a probate court before it can be enforced and assets distributed to your heirs. Probate costs many thousands of dollars and can take up to 2 years to complete. That is time your heirs have to wait to collect their inheritance, and needless money out of the estate before they collect.


Joint ownership does not avoid probate, it only postpones it.


Also, because a Will only goes into effect after you die, it provides no protection if you become physically or mentally incapacitated and unable to sign your checks or manage your assets and affairs. So, the court could easily take control of your assets while you are alive once you become incapacitated - and after you die. With real estate, all owners must sign to sell or refinance. If one spouse becomes incapacitated, the other spouse can find themselves with the court as their co-owner.

 A living trust avoids this unfortunate situation.


If you cannot conduct business due to mental or physical incapacity (for example Alzheimers, stroke, coma, etc) only a court appointee can sign for you - even if you have a Will. The court, not your family, will determine how your assets are used to take care of you. If you recover, it is difficult to gain control back. A power of attorney is not enough, as they can't be used to avoid probate and many also end at incapacity.


A living trust avoids all probate, and lets you keep full control of your assets while you are alive, even if you become incapacitated.


What is probate?

Probate is the legal process by which a court determines the legitimacy of your will and your heirs and distributes your assets according to your will. Without a will, your assets are distributed as the court sees fit and according to your state's laws.




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What is a Living Trust?

A living trust is a legal document that looks somewhat like a Will. It includes your instructions for what you want to happen to your assets when you die, just like a Will. But unlike a Will, a Living Trust avoids probate at death, allowing your heirs to collect their inheritance right away. And it prevents the Court from controlling assets if you become incapacitated. It allows you to appoint in your Trust your choice of who will make the determination of incapacity, and a back up for that person, and who will manage your affairs for you. That can be your spouse, another family member or a friend.


How Does A Living Trust Work with Asset Protection?

A living trust has no asset protection from lawsuits or creditors. However, it can be named as owner of the structure that does protect your assets, such as your family limited partnership or LLC. That way the assets are protected while you are alive, and pass immediately according to your wishes, when you die.


Legally, you no longer own anything in your personal name (everything is owned by your LLC or partnership which you own and control completely, which in turn is owned by your Living Trust, which you control completely.) There is nothing for the Courts to control or get involved in when you die or become  incapacitated.


With the combination of a LLC and/or FLP and a living trust, you can do anything you could do before - buy/sell assets, or change your trust at any time if heirs or assets change. You even file the same tax returns. Nothing changes in how your affairs operate.


Estate Tax Savings with a Living Trust/FLP

A living trust that owns your family limited partnership can double your estate tax exemption threshold. Your CPA can explain why.










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