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Will or Revocable Living Trust?

Most estate planning attorneys will tell you that one of the most commonly asked questions they are asked is “Should I plan my estate with a last will and testament or a revocable living trust?” The most common answer? It depends.

Not all of life’s decisions are binary. For example, if you are willing to risk certain unintended consequences, beneficiary designation planning may be all you need to transfer most (if not all) of your assets at death without probate. Even this decision, however, should be made only after consulting with an estate planning attorney regarding the risks and rewards in light of the applicable law.

That brings us to the choice between a will or a revocable living trust. The decision really depends on whether you want to avoid probate, given your unique circumstances. What is probate and why would anyone seek to avoid it?

“Probate” and Wills

The word “probate” actually comes to us through the Latin word “probare,” which means to test or to prove. In the context of the probate process, this includes proving that the will submitted to the court on behalf of its decedent author truly is the “last will and testament” and not the “second to the last will and testament.” Ultimately, the probate process in most states determines whether the nominated guardian for any orphaned minor children and the executor are not otherwise disqualified from serving under the will; ensures that lawful debts, taxes and expenses of the decedent are paid; and that the inheritance is distributed as directed. One major benefit of probate is the oversight of an independent judge, who dispassionately ensures that the estate is administered, according to the lawful wishes of the decedent maker of the will.

There are three commonly cited downsides to probate, often in the context of celebrity estates. These drawbacks are delay, expense and privacy. Since probate is a court process, the time it takes from beginning to end, may depend on the court’s backlog of cases. The expense in some states is directly due to how the executor and attorney are compensated, let alone if multiple probates must be opened in multiple states where real estate is owned. When it comes to privacy, probate is a public process. This means that all you own, owe and love may be laid bare to the public record. By the way, contrary to common urban legend, having a will does not avoid probate. In reality, a will has no “life” until its maker dies, and the will is admitted to the appropriate court within the time required by statute.

Revocable Living Trusts

If you would like to avoid or at least minimize one or more of these commonly cited probate downsides, then a revocable living trust (RLT) is a proven alternative. Simply stated, think of a RLT as a three-party contract and you are all three parties: the trust maker, the trustee and the beneficiary. Since your RLT is “revocable,” you may change its terms at any time while you are “living” and have the mental capacity to do so. As a “trust,” any assets titled to the RLT while you are living or by beneficiary designation upon your death will avoid probate, even real estate in multiple states. Thereafter, your RLT continues under the management of your named successor trustee for the benefit of your remainder beneficiaries, according to your specific instructions.

The “Secret Sauce”

Regardless how thoughtfully crafted and properly executed your legal documents are, the secret sauce determining the success or failure of an estate plan has nothing to do with technical legal planning. No, the key is organization. This is because when the estate plan must be activated, the person who created it is unavailable for guidance. As a result, the more detailed the who, what, when and where information you leave behind, the better!

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Jarvis Law Office, LLC

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904 N. Columbus Street
Lancaster, OH 43130
(740) 653-3450

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270 Bradenton Avenue, Suite 120
Dublin, OH 43017
(614) 495-4185

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St. Clairsville, OH 43950
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Jarvis Law Office · 270 Bradenton Avenue · Suite 120 · Dublin, OH 43017 · USA