Revocable Trusts

What is a Revocable Living Trust?

Much has been written regarding the use of "living trusts" (also known as a "revocable trust," "inter vivos trust," or “loving trust”) as a solution for a wide variety of problems associated with estate planning that wills cannot address. Some attorneys regularly recommend the use of such trusts, while others believe that their value has been somewhat overstated. The choice of a living trust should be made after consideration of a number of factors.

The term "living trust" is generally used to describe a trust that you create during your lifetime.  A living trust can help you manage your assets or protect you should you become ill, disabled or simply challenged by the symptoms of aging. Most living trusts are written to permit you to revoke or amend them whenever you wish to do so.  These trusts do not help you avoid estate tax because your power to revoke or amend them causes them to continue to be includable in your estate.  These trusts do help you avoid probate, which may not always be necessary depending on the cost and complexity of probate in your estate.

You also can create an "irrevocable" living trust, but this type of trust may not be revoked or changed, and such a trust is almost exclusively done to produce certain tax or asset protection results, which are beyond the scope of this summary.

A "living trust" is legally in existence during your lifetime, has a trustee who currently serves, and owns property which (generally) you have transferred to it during your lifetime. While you are living, the trustee (who may be you, although a co-trustee might also be named along with you) is generally responsible for managing the property as you direct for your benefit. Upon your death, the trustee is generally directed to either distribute the trust property to your beneficiaries, or to continue to hold it and manage it for the benefit of your beneficiaries. Like a will, a living trust can provide for the distribution of property upon your death. Unlike a will, it can also (a) provide you with a vehicle for managing your property during your lifetime, and (b) authorize the trustee to manage the property and use it for your benefit (and your family) if you should become incapacitated, thereby avoiding the appointment of a guardian for that purpose.