| Following are questions and answers concerning estate planning
arranged in what we believe is a logical sequence. Additional questions and answers are added regularly, so please visit our
site often. Please feel free to make copies for non-commercial purposes.
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| 1. |
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Q:
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If I have a will, why would I want a living trust?
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A will is a one-way ticket to probate. Wills often must be formally verified or proven by a probate court and result
in substantial probate fees being paid.
A living trust is almost always the best way to plan an estate because it avoids the probate process
and all probate fees. The probate process often takes ten to fifteen months, whereas with a living trust, property can usually be distributed
within one week. |
| 2. |
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Can a living trust save on estate taxes?
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Yes. While this is not always the case, many people are in a position to save on estate taxes by use of a
well drafted living trust.
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| 3. |
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What happens if I have no living trust or will?
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The state has written a will for you that you may not like. It goes into effect automatically
when a person fails to make their own estate plan. Probate and probate fees are included. |
| 4. |
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Why should probate be avoided by use of a living trust?
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In addition to the fees and lengthy administrative process, probate is a public process. It is not
confidential as with a living trust. All members of the public have access to all information including who is receiving what
property. Also most important, with a living trust, family living expenses can be provided almost immediately. With a will,
the court must evaluate and approve the distribution of family living expenses. |
| 5. |
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Will owning property in joint-tenancy avoid probate? |
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It will postpone it until the second person dies, at which point, probate will be required. In the event
of simultaneous death (such as in an auto accident), probate will not be postponed. Joint tenancy has other possible
disadvantages as well. It can result in a loss of control over the assets and may have severe adverse tax consequences. It is
not the best estate planning method. |
| 6. |
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Is a living trust valid in every state?
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Yes. It is valid in most other countries as well.
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| 7. |
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Is a living trust expensive?
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No. The cost is modest when compared to the costs of probate. The cost will depend upon the
complexity of the plan, the type and amount of your assets and the amount of tax planning required. Always obtain a
quote in advance. |
| 8. |
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Does it make sense to have a living trust if I am not married?
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Yes. If you want to avoid probate, you should have a living trust. |
| 9. |
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Can two unmarried people who are living together have a living trust?
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Yes. This is quite common and often makes sense.
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| 10. |
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If my child dies before me, does his or her spouse become the beneficiary
of that child’s share of my estate?
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It’s up to you, but in most cases the answer is no. Usually the share goes to the children of that child
(your grandchildren). If the deceased child has no children, usually the share would be divided among your other children. The
formula is entirely up to you. |
| 11. |
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Do I still have control over the property in my living trust?
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Absolutely. As trustee of your trust, you can do anything you could do before. |
| 12. |
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Can I leave part of my estate to a not yet conceived child or grandchild?
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Yes. This can be accomplished easily with a living trust. |
| 13. |
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Can I use my living trust to provide long-term care for a disabled child
or grandchild?
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Yes. A living trust is the perfect tool to use for long-term care of any type.
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| 14. |
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Can I provide for my pet in my living trust?
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Most definitely. A properly drafted living trust can provide for the long-term care of your pet after you
are gone.
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| 15. |
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How difficult is it to change my living trust?
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It’s very easy. Changes are made by a simple amendment as long as you are living.
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| 16. |
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Can my successor trustee make changes to my living trust?
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No. Upon your death, the right to make changes ceases. The living trust becomes irrevocable and the
trustee is under a legal duty to fulfill every instruction in your trust document. |
| 17. |
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Is the cost of a living trust tax deductible? |
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Yes. See your tax preparer for details.
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| 18. |
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If I transfer my home to a living trust, can I still deduct the interest?
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Absolutely.
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| 19. |
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Which assets should be transferred into my living trust?
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Everything other than life insurance policies, IRAs, Keoghs and other pension plans. Usually your living
trust will be named as a contingent beneficiary for these types of assets.
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| 20. |
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Can my mortgage lender “call my loan due” if I transfer my home into a
living trust?
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No. The lender’s position remains the same and they cannot call the loan due.
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| 21. |
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By transferring my home into a living trust, will I cause a reappraisal
under California's Proposition 13?
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Absolutely not. |
| 22. |
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Should my life insurance policies be owned by my living trust?
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No. In most cases, the living trust should be named as beneficiary of all policies. This will eliminate
the risk that the named beneficiary (or beneficiaries) could die simultaneously with the owner of the policies, thus
subjecting the insurance proceeds to probate. The policies should be owned by the insured. |
| 23. |
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Should my IRAs and Keoghs be placed into my living trust?
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A living trust should never own your IRAs and Keoghs because such a transfer would be equivalent to an
outright distribution. Thus, it would have negative tax implications.
Most people name their spouse as beneficiary and their living trust as contingent beneficiary.
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| 24. |
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If married, what happens if I have separate property?
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Separate property is still transferred into the living trust. The assets will retain their character of
separate property by use of a "Separate Property Agreement." |
| 25. |
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If I have a living trust, will I still need a will?
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Yes. A pour over will makes sense for most people. It transfers any property left outside the trust at
death to the living trust. While such property may still be subject to probate, it can at least be distributed as part of
your overall estate plan. |
| 26. |
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Do I need an attorney?
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Yes. Only an attorney can give legal advice. It never makes sense to take unnecessary risks. |
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| Michael T. Chulak & Associates |
| Full Service Law Firm |
| MTCLaw.com |
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