One of the most common questions people ask about estate planning is whether they should be using a revocable trust instead of a last will and testament.

The answer requires a more in-depth look at both needs and personal preferences. In order to best understand whether a revocable living trust is the best option, it is important to first understand what the difference between the documents really is.

A will is a document that does not take effect until two events are triggered: the person creating the will (the testator) must have died, and the will must have been filed with the local court. A will is always the last resort for distribution. Co-owned property, property with beneficiaries and trust-owned property generally will pass outside of the will, leaving only property owned solely by the testator. That “leftover” property is what will follow the instructions within the will.

After a probate case is opened, wills become public record, accessible both in person and online. Other documents within the estate, such as inventories of property and property values, also become available to the public.

The executor, usually a family member or close friend, will be required to follow all laws regarding administration This includes adhering to the court’s time frames for completing tasks and filing inventories and other forms.

A revocable living trust is not a purely testamentary document. It does not become effective only after death, but is more like a hybrid between a power of attorney and a will. Revocable living trust give both lifetime powers and after-death powers to agents. Because trusts are not filed with the court or county clerk’s office, they remain private and are not accessible to the public.

Similarly, because trusts do not go through the probate process, the trustee (similar to an executor, but for a trust) simply follows instructions within the document to liquidate and distribute property.

When beneficiaries get along well, trust administration can be significantly faster than probate. However, if a trustee needs to wait for a while to liquidate certain property, such as real estate, there is no rush. The trust can continue to pay necessary expenses until the property is sold.

There are clearly benefits to using a revocable living trust, but those benefits are primarily based on the preference of the person creating the document. The grantor must evaluate his or her own priorities.

For example, those who feel that time in probate is a small price to pay for an inheritance may be completely comfortable with a simple will. Grantors who have no children often are less concerned with the time and public nature of probate. Any inheritance to beneficiaries is merely an unexpected gift.

On the other hand, a grantor who is leaving property to children, especially if the most responsible child is out of state, may want to use a revocable living trust. Upon the grantor’s death, the responsible child could distribute a nominal amount up front to beneficiaries, while taking his or her time liquidating and distributing remaining property. This becomes even more important if a beneficiary has a mental illness, addiction, is a minor child or there is another reason why a public proceeding would be unwanted.

Documents for estate distribution never should be a one-size-fits-all approach. While there are times when revocable trusts are necessary, the most common reason for their use is simply to make distribution easier after death of a loved one.

By considering all options alongside concerns and goals, individuals can choose the estate planning instruments that best meet their needs.

Cynthia Griffin is an elder law and estate planning attorney at Burnett and Griffin PLLC in Elizabethtown. She can be reached at cynthia@bcglawcenter.com.

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