Frequently Asked Questions

What’s the difference between a Last Will and Testament and a Living Trust?

A last will is quicker and easier to set up, but it needs to go through the court probate process after your death. Probate court can be time consuming and expensive, depending on your state.

A living trust allows your loved ones to avoid the potential hassle of probate court. However, trusts require you to change the title to most of your assets, which means more paperwork and ongoing maintenance.

What is Probate?

Probate is the legal process through which the court oversees how an estate and assets will be distributed. While there are many benefits to having oversight of the process by the probate court, it can be time consuming and expensive depending on your state.

If you create a last will, your assets will be distributed to your named beneficiaries as part of the probate process. If you create a trust, your assets will be distributed to your beneficiaries without going through the probate process.

In many states, probate may not be required if the estate is of minimal value.

Can I transfer property into and out of the Trust while I’m alive?

Yes. If you have an individual living trust, you can transfer assets and property, including real estate, whenever you like. Likely, you’ll be your own trustee while you’re still alive. After your death, it will transfer to your successor trustee, appointed by you. Joint trusts require your co-trustor's consent for co-owned property.

What is a Revocable Living Trust?

A revocable living trust can be changed by the person(s) that created the trust. You can change a revocable living trust by amending it or revoking it. An irrevocable living trust, on the other hand, cannot be amended or revoked.

Do I still need a Will if I have a Living Trust?

Yes, you should have a last will for property that may not have been transferred to your trust. Our living trust includes a pour-over will to help ensure that all of your assets are distributed to your beneficiaries. The will lets you name guardians for your minor children.

Will a Living Trust remain legal if I move to another state?

Yes, a living trust is valid in all 50 states, no matter where it's created and signed. You should consider talking to a living trust attorney licensed in the new state to make sure it’s up to date. If you buy real estate or acquire assets in your new state, be sure to transfer it into your living trust.

Do I need a lawyer to prepare my Living Trust?

No, it’s not legally required for an attorney to prepare your trust or estate planning documents.

Can I put my 401k in a Living Trust?

No, you cannot transfer your 401k and certain other kinds of retirement accounts into living trusts. Speak with a living trust attorney for more information about what assets you can include.

Which type of Power of Attorney form do I need - Durable or Medical?

Both.

While situations may vary from person to person, estate planning and emergency preparation involves having both powers assigned so that you’re covered financially and medically. 

When an individual becomes incapacitated, bills and other responsibilities don’t get put on pause. The absence of a durable and/or medical POA can mean that family members will not be able to access accounts to pay for healthcare, taxes, insurance, utilities, and other important matters, and they won’t have clear instructions as to how to care for you if you should be faced with incapacitation. Either of these could hold swift and unfortunate consequences.

What happens if I don’t have one or both Powers of Attorney?

Rules vary from state to state, but in general, the court will have to step in and appoint a conservator — someone to take care of your financial and medical decisions.

Though the conservator is often chosen from your immediate family, there are many reasons why you may not want this to happen. First, the principal has no say in who is appointed, because appointment will happen after an event of incapacitation. Often, the court will choose a single conservator to handle both financial and medical matters. Second, the process is costly, lengthy, and very draining and stressful for all involved.