Using Living Trusts to Avoid or Minimize Probate

Anyone who owns a real estate, has substantial bank accounts and investments or possesses other valuable property needs to consider the possibility that these assets will go into probate — the legal process that decides how a decedent’s estate will be distributed at death. Probate can be expensive, time-consuming and prone to complications. Fortunately, there is an effective way to avoid probate while still controlling how your assets will be handled when you die.

A living trust, also known as a revocable trust, is an estate planning tool by which you can manage assets during your lifetime and name beneficiaries to receive them upon your death. You may transfer some or all of your property into the trust and name yourself as the trustee. The transferred property is titled in the trust’s name. However, during your lifetime, you maintain complete control over the trust, meaning you can add and remove property and use the property as you see fit. You can change the terms of the trust at any time, such as by adding or removing beneficiaries or by changing the amount of their distributions. You can name a successor trustee to take over upon your death or in the event you become mentally or physically disabled. The trustee is then responsible for managing the trust and distributing its assets as you have directed.

While there are other benefits to having a living trust, the prime advantage is that the property in the trust will not have to go through probate. In New York, probate means proving the will in Surrogate’s Court, which involves contacting all potential heirs and risking possible contests to the will’s validity. It can take several months or longer to go through a complicated probate process, which can cost hundreds if not thousands of dollars in legal and court fees.

Even if you opt for using a living trust, it’s still advisable to have a will, so that property not included in the trust will be distributed according to your wishes. In fact, your will can include a “pour over” clause, providing that any property that was not placed in the trust prior to your death is inherited by the trust. Although the will is subject to probate, it may qualify for a small estate affidavit due to the reduced amount of assets included.

For help drafting a living trust and/or a will, contact the Law Office of Maurice J. Verrillo, P.C. in Rochester. We are a family-focused, Christian law firm committed to advancing our clients’ best interests. To schedule a free initial consultation, call us at 585-563-1134 or contact us online.


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