Will Your Will Avoid Probate?
The term "living trust will" is not really a legal term. But, it is a term that is often used when people start looking into living trusts. People commonly think of using a will to distribute property after someone’s death. 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".
Wills and living trusts have related, but different legal concepts and documents. In many respects, a living trust can serve many of the same purposes as a standard will. So, as an attorney, I will probably not know what someone wants, if they ask about a "living trust will". A will and a living trust are two very different legal documents. Living trusts always have a "pour over will", a specific type of will, associated with them. A pour over will is a safeguard mechanism for a living trust.
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. People use living trusts to avoid probate and get more value to their heirs without paying any estate taxes. A revocable living trust only avoids probate if it is properly managed by the person who sets it up.Most people who get a living trust do not avoid probate. 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 dilemma is not caused by the trust. It is a problem with the attorneys and how they educate their clients. Clients need to be given enough education to know how to "use" their living trust so that it will avoid probate.
The deceased’s assets will need to be probated if the living trust does not function properly. That means the family has to go through a lengthy legal process at the probate court. 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 pour over will should be drawn in conjunction with a living revocable trust. The probate courts can use the pour over will to direct them through the process if probate becomes necessary. The pour over will won’t be needed if the trust works properly and actually avoids probate.
Pour over wills don’t make a distribution of the property, as standard wills do. A pour over will instructs the court to "pour over" all of the assets into the living revocable trust and distribute the assets as stated in the living trust. For more information on the topics of living revocable trusts and pour over wills, see Lee R. Phillips’ new book, Guaranteed Millionaire. Get a FREE DVD, "Using the Law to Make Money and Protect Your Assets" by clicking the Free DVD link.