Living Trust vs. Will/?? John T

I have an attorney as the property was in my dads name only. Also out of state.As a wise man once said- "this too shall pass".

The lawyer took care of everything, collected his fee but most of that would've gone to a real estate agent if he hadn't handled the sale of her home anyway (plus he was a lot better negotiator than me). And stay away from financial consultants unless they're a tax lawyer or CPA.

Without getting into specifics, when my dad passed his affairs were far from in order, and even though he had a will,with me as PR.As things turned out all of his disposable income was left to a certain relative who quickly deposited it in his/her bank account. Legal? Yes.

As a result his funeral has yet to be paid, as PR i am now responsible for getting the house and grounds cleaned up (new roof,30years of scrap steel and junk scattered over his acreage ). Account for and sell off his personal assets,deal with the bill collectors all the fun stuff.

Did i forget to mention this a 2 hour drive from my home.

I am sure there are much worse stories out there, but watching my family turn into a Jerry Springer episode over a few bucks sickens me.

The best advice is hire a good attorney, get it done right the first time. Pray you are not the designated as PR.

As PR its your job (and the law requires) to collect n preserve the assets and pay any just claims and ONLY then to make distributions. If the Will granetd someone some money it wasnt correct for them to get at it, you are the one charged with and legally responsible to give it to them HOW DID THEY GET IT????? ? (My guess is by non probate transfer like joint or POD checking right???)

Even if someone got money by operation of law like a joint checking a non probate transfer, its still possible for a creditor to get at that money.....

As I recall the prioroty for distribution of theres not enough money to go around is

FIRST IRS lol not a surprise,,,,, ,,second is Funeral home,,,,, ,I think attorney fees are right up there,,,,, then medical n all that stuff,,,,, ,,,,finally the distributees

best wishes n good luck with it..

John T

We updated our wills last summer. Our attorney said that trusts are primarily an opportunity for attorneys to make more money, and were totally unnecessary in our situation. My cousin set up trusts through a bank - and the bank is milking money from the trusts with every kind of fee imaginable.

Your attorney might be totally sincere and think he/she is only telling it like it is---and still not realize how much the way attorneys view the world influences the advice he/she offers.

A Revocable Living Trust can cost a fortune to create, or next to nothing, just like a will or anything else you pay an attorney to do. A will must be probated before the estate can be dispersed. Probate can be a bonanza for attorneys---particularly if the will is contested, but it's never cheap. Most states allow an individual to go through the probate process without an attorney (or claim that they do, at least), but it's beyond the capability of most people. Some states make it next to impossible to go through probate without an attorney, and it may not be allowed at all in some---I don't have that information.

When my wife's mother died ten years ago, my wife worked her way through probate by herself here in Washington State. Trying to probate some property her mother owned in Utah was beyond her considerable capability though. They protect their lawyers there. Anyway, my wife had three strikes against her: She was a person trying to not have to hire an attorney, she was not a Mormon, and she was a woman. She eventually dealt with 4 different lawyers there, trying to get a simple job done. Neither of us have ever witnessed such self-congratulatory incompetence as those four sorry human beings demonstrated. One of them was a woman, and she would have been the least able of the lot, but we gave her some consideration for not stealing anything. Ah, Utah.

My mother died last year. Her estate was held entirely in a Revocable Living Trust which I had created for her. (I am a licensed CPA in Washington State, so I'm not claiming that just anyone could, or should, do it themselves.) I was the successor trustee--the equivalent of executor of a will---and distribution of the money in her bank account, and later, from the sale of her house required only that I present a copy of the trust and a copy of the death certificate to the bank, and then to the real estate title company. No costs, no delays, no complications. Contrary to what what one previous responder said, inheritance through trust distribution is tax free to exactly the same extent as inheritance through a will. Neither one will circumvent estate tax if the size of the estate is greater than a specific amount (now more than a million dollars), and neither one interferes with the stepped-up basis of property that makes the amount of inheritance that working people usually get tax free.

There are specific benefits to using a will as the instrument to disperse the estate, just as there are specific benefits to doing it through a trust. You'll get more unbiased information cheaper by getting a book on estates covering wills and trusts from the library. Even with the best books it's not easy going, but you'll be a lot better off spending enough time that you finally understand it. After you get to that point you can shop around for an attorney or an accountant to do exactly, and only, what you want to do.

All the best, Stan

Old Conservative Fuddy Duddy John T

That being said, I can still state with professional certainty now that whether a Trust or a Will is best for her DEPENDS ON THE SITUATION. In some cases a Will is better while in others I would suggest a Trust BUT ONLY AFTER A THOUROUGH REVIEW, not based on one sentence on a tractor chat board. One must also be careful when a brother in law or the dude next door tells you it should be a Trust or another says NO a Will BECAUSE IT DEPENDS ON THE SITUATION. When that same brother in law or next door neighbor advises you to have an operation DO YOU PUT MUCH FAITH IN THEIR OPINION??? No I doubt it (you consult a professional educated in medicine right) but sooooo oo many people have been ripped off or lost fortunes because they believed the brother in law or the neighbor and didnt consult with an attorney trained in the legal profession like they would if they needed medical help or a plumber or an electrician ITS GO DO WHAT THE NEIGHBOR OR BROTHER IN LAW TELLS THEM

ENOUGH RANT N DISCLAIMERS LOL I wouldnt want my own mother or even a stranger ripped off or given bad advice when a short relatively inexpensive session with a trained professional (versus the brother in law lol) could have prevented the same....

Im not going to attempt to explain the advanages or disadvantages of a Will versus a Trust here in a paragraph THATS IMPOSSIBLE. Just last week I attended a two day conference on Elder Law (part of our legal continuing education) and heard of sooooo ooo many of the horror stories and "dudes" many NOT attorneys out there inviting folks to the Holiday inn for this free seminar to lure them into paying $3000 for a fancy leather bound LIVING TRUST and spreading all sorts of lies and half truths about how they were better and a Will was a piece of crap. (Its hard to get $3,000 for a Will you see, I just charge $100 for simple wills, maybe I need to start selling those fancy leather $3,000 Trust packages lol) Many are being sued now and the states Attorneys General are pressing criminal and fraud charges against SOME of them. DONT BELIEVE EVERYTHING YOU HEAR AT THE HOLIDAY INN FREE TRUST SENMINAR !!!!! !!!!! !!!!!

True, for some its best but NOT for others that why I wouldnt put much faith in whats posted here (mine included as its unresearched) even if it were true and perfect FOR THOSE CERTAIN SITUATIONS. Both a Will and a Trust could have been perfect n correct for a person here BUT MAYBE WRONG AS RAIN FOR ANOTHER. Thats to say what a lay person tells you hear may have been exactly right and honest and from great people (tractor folks are the finest Ive ever encountered, gotta love em all) but may or may not be best for the lady you spoke of..... ....

FINALLY TO GIVE A FEW BRIEF UNRESEARCHED PROFESSIONAL LEGAL OPINIONS

If a lady wishes her property to pass to certain individuals and doesnt trust family members, Id advise her to use a Will prepared by an Attorney and perhaps name a local bank and trust company as her Personal Representative PERIOD..... .....A proper will can survive any challenges if done RIGHT.....

Other methods I often use if she wanted to transfer real property upon death are a Deed of Conveyance subject to the reservation of a Life Estate NO PROBATE OR TRUSTESS ARE NECESSARY the property passes as a matter of law outside of any estste, a non probate transfer. Another method is Joint Ownership with full rights of survivorship but it may have disadvantages .....

If for some reason she insisted on a Trust, again DO NOT NAME FAMILY MEMBERS AS CURRENT OR SUCESSOR TRUSTESS.

There may or may not be tax advantages in one versus the other DEPENDS ON THE SITUATION

Wills and Estate Settlements can be public information while the trust instrument can be kept private.....

PLUS ABOUT 100 OTHER THINGS only a few of which were touched on briefly in my recent 2 day seminar SEE WHAY THIS CANT BE COVERED HERE????? ?

Based on what little info you have I dont see the need of any Trust. A proper will can take all the worry out of any family members she doubts and no worry about any family member trustees. A Trust requires a current (could be her) plus a successor trustee (even if a bank) but a Will coupled with other joint survivor or POD (like the person she wants it to pass to) accounts can insure the distribution she wants NOW and no other future worries. A joint account or POD is a non probate transfer remember, no estate or settlement worries. Present the bank with ID and a death cerificate plus the necessary auditors documentaion n BANG ITS YOURS no probate no estate NO ATTORNEYS NEEDED LOL. Likewise a joint real estate tenancy (or the life estate I mentioned) REQUIRES NO PROBATE OR NOTHING AT alllll lll Other persons dead BANG its your property PERIOD. Although I do file affidavits of survivorship in such cases.

Seeeee eee its possible if done right by an attorney for her to pass all she wants n how she wants it now with no family member worries n if I got done with her she wouldnt require any expensive trust or hardly even need a Will..... ... and can get by with almost no or limited probate

NUFF SAID A Will may be best or a Trust IT ALL DEPENDS Have her consult a local Elder Law Attorney PERIOD (PS I think maybe joint or POD accounts and a simple Will is alllll l she needs, if she feels better having a $3,000 Trust its good business for those who sell them and in SOME situations its best and money well spent if from a reputable attorney, they are great in some cases)

God Bless all the great people here n have a Blessed n Merry Christmas

John T (long retired electrical engineer now a semi retired Country Lawyer)

Maybe you can't give a complete answer on a tractor board, but you sure came close!

Question: Why do you say "do not name family members as trustees"? Is that based on your experiences, or is there a legal reason not to do so?

Now help me with tricity n the NEC as you have before cuz Im kinda rusty on that AC power stuff

JT

I don't think you need much help with the double-E stuff! I've been away from it about as long as you have.

I'm a tax assessor, so I get to see some of this stupidity that lawyers create. In one case, a couple came in, wanting to know why we had removed the homestead exemption on the man's mother's house. Turns out the mother had wanted to make her property readily available to her son upon her death, the lawyer had titled it in the sons name, but the son already had a homestead, so we pulled the one on the mothers place. What the lawyer should have done, and should have know to do and recommend, is to transfer the property to her son and that he give her a Life Estate in the property. She has the right to live there until she dies, and she can claim homestead on it. We suggested they go back to the lawyer and explain to him what he should have done and make him do it for free the second time around.

With money in accounts of almost any kind, I personally feel the best thing that you can do is not to designate a beneficiary, as this puts the account inside the estate and it has to go thru probate, with all debts of the estate being paid out first, the beneficiary only receiving the remainder of the account if any, but rather, designate the account as ITF or POD (In trust for, or Payable On Death) which puts the account outside of the estate. The person named as the ITF or POD need only walk in the bank or where ever, and present a death certificate, and identify themselves, and walk out with a check. No estate, no probate, no problems.

Again, as noted, seek the advise of an attorney who specializes in estates, make the complete situation, and all property, both real and personal, known to the attorney and throughly discuss the possibilities and ramifications. Be prepared to ask questions and challenge what you are told if it doesn't seem right, that is the only way to get the skinny.

Charles

There is no easy way to do this - but I suggest you find an expert you trust. "Trust" is the key word. I have spoken to many Elder Law professionals that are only looking out for themselves. Obviously they are not all that way - just keep in mind that it's big business and you have to do your homework. Same goes for lawyers in general. Some lawyers do so because they are interested in the law and helping people. Some other lawyers are functional idiots - and know less about the law in general than an average lay-person. Again, like in just about any business, some do it for the money, some do it because they love the work, and some can mangage a healthy balance of both. A Juris Doctorate does not guarantee excellence.

And - I'm not trashing the legal profession- some of my best friends are attorneys.

Will - sets out persons wishes, transfer of title to heirs has to be made after DOD, BIG hassle for executor or personal representative

putting stuff in "joint" accounts/names has plus/minus sides

greedy relatives can challange ANYTHING

I could go on for days, please find an honest attorney (they are alleged to exist) and hope he/she does a good job

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