Fab Real Estate Blog: Living Trusts - They ARE Important

Living Trusts - They ARE Important

Yesterday, my local paper printed a Wall Street Journal article titled, "Living Trusts: Sometimes Needed, Often Not."  Here is a portion of the article.

The gist of the article explains that most people do not need a living trust.  Hogwash.

One can create a living trust, place their valuable assets (investments, automobiles and homes) into the trust, and thus provide for how such assets are to be utilized and distributed should you become incapacitated or die.  There are, of course, some caveats to living trusts:

  • You should consider a revocable living trust rather than an irrevocable living trust.  A revocable living trust allows you to make changes later.
  • You must fund the living trust, by placing the titles to your assets into the trust.
  • Creation of a revocable living trust requires the use of, and cost associated with, an attorney.

What are the benefits of a living trust?

  • Upon your death, your heirs do not have to go through probate court
  • Should you become incapacitated, the successor trustee can control your assets per your previously detailed instructions
  • Upon your death, your heirs do not have to go through probate court

Did I mention that your heirs will not have to go through probate court upon your death?  That can save your heirs an extraordinary amount of time and money, especially if you own real estate in more than one state.  Without a living trust, your heirs would be required to go through probate court in each state in which you owned property.

In addition to a revocable living trust, you should also consider having a "pour over" will to cover any assets that were not funded into the living trust.

In his quest to discredit living trusts, the writer of the article states that one way to avoid probate court on your real estate is to hold "property in joint ownership with the person you want to inherit it."  This is a huge, huge mistake.  Let's take a look at an example of this:

Mrs. Jones is elderly, and wants her surviving children to avoid probate court after her death.  So, she deeds 1/2 of her home to Jane, her adult, married daughter as a joint tenant.  By doing this, upon her death, Mrs. Jones' ownership of her home is transferred to her joint tenant (her daughter, Jane), who will then own 100% of the home.  While most parents assume their children and families will always do the right thing, this scenario is fraught with perils, such as:

  • If Jane later goes through a nasty divorce and her assets get divided between her and her husband, Jane's portion of her mother's house can now be awarded to her ex-husband, who could then become a third co-owner of the property.  As a co-owner, Jane's ex-husband could then petition the court to force the sale of the home so he can obtain his financial stake in the house.  If the court forces a partition sale, Mrs. Jones could end up without a house.
  • When property is inherited, the heir or heirs receive the property at its current market value as of the date of death.  Thus, if sold at the same market value, the heirs may not owe taxes on the profit.  But, when Mrs. Jones deeds 1/2 of the home to her daughter, Jane now takes over her mother's possibly very, very low cost basis.  When selling that home after her mother's death, Jane may now be taxed on the difference between the sales price and her mother's original purchase price (less any improvements made).
  • Upon the mother's death, her daughter, Jane, now owns 100% of the home.  Will Jane now distribute the value of the home to her siblings, if that was her mother's wishes?
  • Suppose the tragic:  What if Jane causes a major traffic accident and seriously injures or kills another person?  If Jane is sued and loses the lawsuit, one of her assets that can be attached is the home she co-owns with her mother. 
  • Suppose relations between Mrs. Jones and her daughter, Jane, should sour over time.  Or if Jane should encounter serious financial issues.  Jane will have the legal right to petition the court to force the sale of the house so that she can obtain her proceeds from the sale.  Once again, Mrs. Jones could end up without a home.
  • In all of the above examples, Mrs. Jones has given up her right as a sole homeowner.  Her future, and the future of her home, suddenly come under the control of others.

Estate planning takes careful thought and planning.  It should be left to your chosen professionals, in consultation with you.  Do not allow a newspaper writer to blur your decisions when the alternative possibilities, such as those listed above, are not even included in the article.  Consult your estate planner, your tax professional and your attorney and together, determine what is the best plan of action for you.  Still unsure?  Then get second opinions from other qualified professionals.

Please note:  I am not a tax professional nor am I an attorney.  I am not an estate planner. Please do seek the advice of these professionals to discuss your specific needs and wants and determine your best course of action. State laws may vary and should be taken into consideration.

Comment balloon 0 commentsDon Fabrizio-Garcia • January 01 2007 05:52PM