You have worked hard your whole life to build your savings, and after all is said and done; you want to pass your estate down to your heirs. If you’re not careful, this process can go painfully wrong. Fees, taxes, and legal costs set you back, and it is possible your heirs won’t receive what you had intended. Fortunately, this can be avoided, and the steps to take are simple.
To Will or Not to Will
Here is the easiest way to remember the difference between a will and a living trust. A will directs the disposition of your assets after death, while a living trust becomes valid while you’re alive. For many years, a will has been the popular choice. Perhaps that is because in books and movies, passing assets to the next generation is always done via a will. In reality, a will isn’t likely to be the best option for most people. A will involves the probate process, which comes with unnecessary costs. When you use a living trust, the upfront costs are higher, but no probate is required, which makes it a more affordable option overall. There is one exception. Some states offer expedited and simplified probate if the estate is under a specific dollar threshold. That number depends on the state. Asides that exception, you should strongly consider a living trust as opposed to a will.
Basic Living Trust Advantages
A living trust becomes valid immediately after you execute documents, and your property is transferred into that trust. Then it’s up to you to manage those assets. If you’re an investor, then you can look at it as a form of active management versus passive management, only in this case, active management is more affordable.
In addition to affordability, which stems from avoiding the probate process, a living trust will allow you to control what happens to your assets during and after death. Also, unlike a will, a living trust is not public record. Furthermore, you can use a living trust regardless of the size of your estate. Other pluses of a living trust include federal and state tax advantages, a better chance of withstanding the estate being contested, and the ability to determine when a small child, grandchild, or special-needs dependent will be able to have access to the trust.
A living trust is a much faster and easier process than a will, and it is more specific than power of attorney on a will. As long as the trust is funded, the freezing of assets will not be allowed. Be sure to have all assets titled in your trust name. That includes certificates of deposit (CDs), stocks, bonds, mutual funds, real estate, businesses, etc. This will help you avoid probate. More than one person has failed to place assets in the trust, with the result being that upon their death, it was useless because it held no money.
Although livings trusts have more upfront costs, they can be more affordable than wills and probate in the long run. A lot of estate planning lawyers has paid for their luxurious lifestyles by leading clients down the wrong path, which is probate. If you challenge one of these estate planning lawyers on this topic, they might state that a living trust is more expensive, but that’s only the case upfront. A living trust is almost always a cheaper option when looking at these two options (will versus living trust) in their entireties.
Do you have a child from a previous marriage that you would like to treat as a beneficiary? If so, it would be wise to consider a living trust. If you use a beneficiary design or joint ownership, your spouse could end up with control of your assets, which could then lead to those assets going elsewhere, including to their children from a previous marriage, or even a new spouse. Your children can be in charge of their own shares.
As a trustee, your children can invest however they see fit. They will also have the option of taking out money from the estate for living expenses. And they can use it to help pay for their child’s education. Your child’s inheritance will be protected not only from creditors but from bankruptcy as well. If you were to choose a will, the above options wouldn’t be available.
Be sure to hire an experienced attorney. Not only should that help you avoid the above scenario, but it should help you determine who receives your individual retirement account (IRA), 401(k), or life insurance. The recipient of your retirement accounts and life insurance policy is based on the beneficiary on the account of the policy, not the name on your will or trust. A specially designed trust can help you avoid this scenario.
A New Trend
Baby boomers are hopping on the living trust bandwagon and for a good reason. Avoiding probate is the biggest advantage, but as you already know based on the information above, it’s not the only one. There are other things you should know about a living trust prior to making any important decisions:
• A living trust is revocable while you’re alive, but irrevocable when you’re dead.
• There are three parts to a living trust: creator, trustee (manages assets), and beneficiary. Strongly consider naming yourself a trustee for control over assets.
• A living trust can be used as a substitute for power of attorney.
• You can determine when assets are passed on to a beneficiary; it doesn’t need to be immediately upon your death.
• A disgruntled heir can challenge a trust (a disgruntled heir can also challenge a will).
• You can fund a living trust at your desired pace.
• Always hire an attorney to prepare a living trust (and avoid a horror story).
• Avoid online “living trust kits.”
• The average living trust will cost a few thousand dollars to set up.
For most people, a living trust will present a faster and more affordable option than a will. There are numerous advantages to a living trust, with the most important being avoiding probate. However, this doesn’t undervalue the other advantages above, which include avoiding assets moving in an unintended direction.
How To Prevent Someone From Contesting Your Will
One of the underlying goals of creating an estate plan should be to head off fights among your beneficiaries and instead promote acceptance that your true wishes have been spelled out and will ultimately be fulfilled.
In order to achieve this goal, consider the following five tips.
Don’t Procrastinate on Planning Your Estate
The time to start on your estate plan is while you have your wits about you, not when there can be any question about whether you really knew what you were thinking and doing. Avoiding a will contest starts when you create or update your estate plan at a time when it is clear that you are able to make informed decisions and understand all of the consequences of these decisions. If you’re not totally sure what you want to do, don’t use this excuse. Making an estate plan that meets 90% of your goals is better than no plan at all.
Avoiding a will contest is all about recognizing the problem and addressing it sooner rather than later.
Include a No-Contest Clause in Your Estate Plan
A no-contest clause, also called an in terrorem clause, is a provision that you can include in your will or revocable living trust that states if anyone files a lawsuit to challenge who you provided for in your estate plan, then the person challenging the will or trust will receive nothing from your estate. This can be a powerful deterrent to someone who is receiving what they perceive to be less than their fair share of your estate—okay, go ahead and file a will contest, but if you lose then you will get absolutely nothing. But be careful in relying on this type of clause because, in some states, including Layton, they are unenforceable. In other states, there are exceptions that can render the clause useless.
Don’t Flaunt Your Estate Plan but don’t keep it Secret Either
If you want to provoke a will contest, then go ahead, brag all around town about your estate plan that completely cuts out your deadbeat son or locks up his inheritance inside of a bulletproof trust or forces him to go into rehab before he gets a dime. This really isn’t the best course of action. Instead, consider letting your loved ones know exactly what you’ve done and your reasons why. While complete secrecy will breed contempt, keeping your loved ones informed will eliminate any big surprises. What you choose to do should be based on what you think will prevent a will contest in your particular situation after consulting with your estate planning attorney.
Trust in Trusts
A revocable living trust is an excellent vehicle for heading off a will contest since this type of trust is viewed as a personal document that should be kept private. Conversely, a will is a public document that anyone can read once it’s filed with the probate court after your death. Aside from this, revocable living trusts are “living” documents that cover all phases of your life—while you’re alive and well or not so well and then after you die. Wills are “dead” documents that only go into effect after you die. Also, consider establishing discretionary lifetime trusts for problem beneficiaries who you fear will just squander their inheritance.
Lifetime trusts can be made flexible and used to encourage a beneficiary to achieve all sorts of personal and financial goals.
Don’t Throw Your Estate Plan in a Drawer
Once you’ve made an estate plan that you like, don’t forget about it. Pull it out of the drawer at least once a year, brush it off, and review it for any tweaks or significant changes. A consistent pattern of sitting down with your estate planning attorney once a year to review your estate plan sends a powerful message to your loved ones. If they know you have been attentive of the plan it will help to stave off any thoughts of a will contest, particularly if you don’t make any significant changes or systematically make changes that reflect your ever-changing family and financial situations. Living trusts can be either revocable or irrevocable. A revocable trust can be undone or altered by its creator—referred to as the grantor or the trust maker—at any time. It’s a legal vessel into which you can transfer your property for estate-planning purposes.
A revocable trust has some distinct advantages over a last will and testament, but making a decision between these two estate-planning tools comes down to your personal concerns and what you want to achieve with your assets.
The Probate Requirement
Probate is the court-supervised process of transferring assets from the deceased’s ownership into the names of their beneficiaries. It’s required when someone dies leaving a will, or if they don’t leave a will or have any other estate plan. Probate is necessary because the property has no other way of passing to a living individual, and the deceased can’t continue to own property. A revocable living trust doesn’t require probate because the trust becomes the official owner of the assets when they’re transferred into it. The trust hasn’t died, so a court process isn’t necessary to transfer their ownership. A trust a private contract between you as the trust maker or grantor and the trust entity. A grantor often serves as the trustee of their own revocable living trust, managing the property placed within it during their lifetime.
A successor trustee can be named in the trust’s formation documents to step in and take over management of the trust after the grantor dies. The successor would settle the trust and distribute its property to the beneficiaries named in the trust documents.
Living Trusts Maintain Privacy
A will becomes a matter of public record when it’s submitted to the court to open the probate process. Anyone can stop by the courthouse and read it. They’ll know what you owned and to whom you left it. No one other than the beneficiaries and, in some states, your heirs regardless of whether you’ve named them as beneficiaries of the trust are entitled to see or review your trust documents. But the documents won’t become a matter of public record unless an heir or a beneficiary files a lawsuit to challenge the validity of your trust. The trust documents would become evidence in this type of situation.
Planning for Mental Disability
A significant advantage of a revocable living trust is that it can prepare your estate for the eventuality that you might become mentally incapacitated at some point before your death. Unlike a last will and testament, a trust doesn’t just govern your assets when you die. Your successor trustee can also step in if you become mentally incompetent to the point where you can no longer handle your own affairs. Your trust documents can specify how it should be determined that you’re mentally incompetent, such as by certification from your own physician or by a team of physicians who must all concur. Your property would not transfer to your beneficiaries if you should become incapacitated, as it would at your death. Your successor trustee would simply manage your finances and property for you because you’re unable to do so. Your loved ones would have to ask the court to appoint a guardian or conservator to manage your affairs in this case if you leave a will rather than a revocable living trust.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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|Incorporated||May 24, 1920|
|Named for||Christopher Layton|
|• Mayor||Joy Petro|
|• Total||22.65 sq mi (58.67 km2)|
|• Land||22.50 sq mi (58.27 km2)|
|• Water||0.16 sq mi (0.40 km2)|
|Elevation||4,356 ft (1,328 m)|
|• Total||83,291 (2,021 est)|
|• Density||3,634.36/sq mi (1,403.35/km2)|
|Time zone||UTC−7 (Mountain (MST))|
|• Summer (DST)||UTC−6 (MDT)|
|Area code(s)||385, 801|
|GNIS feature ID||2411639|
Layton is a city in Davis County, Utah, United States. It is part of the Ogden-Clearfield Metropolitan Statistical Area. As of the 2020 census, the city had a population of 81,773, with 2021 estimates showing a slight increase to 83,291. Layton is the most populous city in Davis County and the ninth most populous in Utah.
Layton has direct access to Salt Lake City, Ogden, Salt Lake City International Airport, Antelope Island, and the FrontRunner commuter rail. Layton City is a leader in economic development for the region, with immediate adjacency to Hill Air Force Base, a large hospitality district (1,000+ hotel beds) and conference center, the Layton Hills Mall, multiple nationally recognized retail and food chains, the East Gate Business Park, and the Weber State University-Davis campus.
In 2014, Layton contributed $1.34 billion worth of retail sales activity, the second largest market north of Salt Lake City and seventh largest in Utah.