Estate Planning Pitfall: You own property outside your revocable trust

The primary purpose of a revocable trust — also known as a “living trust” or “inter vivos trust” — is to avoid probate. But if you’re not diligent about transferring assets to the trust, that purpose may be defeated.

Probate is a court proceeding held to authenticate your will, assess the value of your estate, resolve creditor claims, pay taxes and other expenses, and distribute assets to your beneficiaries. Avoiding probate may be desirable for several reasons, including:

Cost reduction. Executor and attorneys’ fees, court costs and other charges can make probate expensive.

Time savings. The probate process can be time consuming, delaying distribution of assets to beneficiaries pending weeks or even months of court hearings.

Privacy. Probate proceedings are a matter of public record, exposing details about your financial affairs to anyone who cares to look.

A revocable trust avoids probate and also allows your representatives (rather than a court) to maintain control over your financial affairs in the event you become incapacitated.

It’s critical to transfer title to your assets to the trust. If you leave assets out of the trust, they may have to go through probate and they won’t be under the trustee’s control if you become incapacitated.

Keep in mind that, depending on your circumstances, it may be desirable to transfer certain assets to your loved ones outside the revocable trust, using other methods that also avoid probate. For example, you can transfer retirement accounts to family members simply by naming them as beneficiaries of your IRAs or retirement plan. Similarly, you can name beneficiaries for life insurance policies. In fact, with life insurance policies there are other strategies, such as using an irrevocable life insurance trust, which in addition to allowing you to avoid probate will also provide a way to avoid estate taxes on the proceeds.

Published In: Wills, Trusts, & Estate Planning Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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