The attorneys at our Santa Fe Estate Planning Law Firm recognize that many people do not understand the value of a living trust as a financial planning tool. When one’s estate plan is founded on an artfully drafted living trust, it can provide peace of mind and financial security for both the trustor who makes the trust and beneficiaries. When the living trust is revocable, it also affords the drafter with the additional benefits of flexibility in terms of permitting changes in the future. We have provided an overview of key facts that are important to know if you anticipate making a living trust a component of your estate plan.
How does a will and living trust differ in terms of passing one’s assets to loved ones and family?
While a will allows you to specify who will inherit which assets, it must be administered in probate court before your wealth can be distributed to those you indicate with this estate planning device. Wills do not offer much flexibility in terms of tax planning, multiple generation gifts, or privacy. Unlike a will, a living trust allows one to avoid the probate process which secures privacy for both the party who creates the trust and beneficiaries in terms of personal financial matters. In most cases, the financial costs associated with the probate process are higher than when a living trust is employed for passing one’s legacy.
What needs to be considered when weighing whether to use a revocable living trust or a non-revocable trust?
Both forms of trusts involve a person entering into a contractual agreement with a trustee to manage the assets and property placed in the trust for those designated as the beneficiaries of the trust. Many revocable trusts designate the trustor as the beneficiary of the trust so that the person who places his or her assets in the trust does not need to irrevocably surrender control of the property. Although this might make it seem that a revocable trust is clearly preferable, an irrevocable trust can provide other benefits. When an irrevocable trust is created, the trust may not be modified or terminated so the assets can be protected from creditors. The assets in an irrevocable trust are not considered part of the trustor’s net estate so transferring assets into the trust also can reduce estate tax liability.
What are the consequences of dying without a trust or will?
When an individual dies without either of these estate planning instruments, it is referred to as dying “intestate.” If a person passes away without either a will or trust, New Mexico’s intestate succession law provides that a decedent’s property pass through probate proceedings to specified family members, such as a surviving spouse and children. Without a trust agreement or will, a probate judge will appoint a person to oversee the administration of the estate and the assets will pass according to statute rather than the decedent’s preferences.
The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.
If you have questions about estate planning, our Santa Fe, NM Estate Planning Attorneys at Jay Goodman & Associates, PC offer a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your specific situation. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.