If an individual wishes to have the final decision about how their own estate will be distributed after they pass on, a Last Will and Testament is a vital document. Every person who has assets should, at the very minimum, have a Last Will and Testament. Failure to have such a document in New York state subjects the estate of the deceased individual to the mercy of New York’s Intestacy Laws. This means that if you die intestate, your assets will pass to beneficiaries whom you very likely will not have intended to inherit. This can be avoided with a properly drafted and enforceable Last Will and Testament.
If you have concerns about the probate fees and delay involved with the administration of your own estate, then a revocable trust, sometimes called a “living trust,” might be a more suitable tool. The revocable trust is a Will substitute that accomplishes the same goals as a Will. When such a trust is set the individual transfers their assets to the trust. Transferring assets is typically called “funding.” When assets are being transferred, the individual does not relinquish any control. They can still buy, sell, borrow or transfer.
In our experience, the primary reason most people opt for a revocable trust is for the stated purpose of avoiding the cost and delay associated with their perception of the probate process. Some other reasons that you may want to consider a living trust:
- Probate avoidance that is applied across the United States of America, and not just to a specific state. This means that the individual’s estate avoids the need for multiple probates if there are assets in, say, New York as well as Florida.
- Maximum privacy. A Last Will and Testament becomes a public document once probate has been granted. The living trust remains a private agreement between the individual and stated parties. This can be particularly useful if there is disharmony among family members
- Management of affairs during incapacity. Unlike a Last Will and Testament, a living trust has an incapacity clause that enables someone else to act on your behalf if you are incapable of doing so yourself. This potentially avoids the need for a guardianship, as well as the related costs and bureaucratic difficulties.
- Flexibility. A living trust can be modified to reflect changed circumstances through an amendment. There is no need for a new living trust or the re-titling of assets, as a single-page amendment to an existing living trust will usually suffice, depending on the circumstances.
The “funding” process is an important part of the preparation of the living trust. Any account that is not funded correctly will require probate, resulting in the defeat of the original plan of avoiding probate (and the associated costs and delay). The Law Office of Antony M. Eminowicz, PLLC will not simply leave you to “fund” your own living trust. At no extra cost, we will help you by preparing all documents for signature, and contact your financial institutions about the re-titling. We will then send written confirmation when all of the re-titling is completed.
Restatement of Trust
Do you have a living trust with numerous amendments that have made it overly complicated, or does not reflect changes in personal circumstances or the law?
Unless there have been changes in circumstances, it is important to review your estate planning documents (be it a will or trust) at least every 5 years, to take into account any changes in the law.
A living trust can have as many amendments as it needs in order for it to express an individual’s intentions. Caution must however be paid where a living trust has too many amendments as it could result in a trust that has become overly complicated to manage, or a trust that no longer carries out the intentions of the individual.
A restatement of trust serves the purpose of making an individual’s intention easier to comprehend, by revising the trust and its numerous amendments from beginning to end. Because the trust is being revised there is no need to re-title all assets held in the original living trust. All the hard work that was put into funding the original living trust under the original trust name and date need not be undone.
Antony M. Eminowicz, PLLC has extensive experience in assisting clients on restating their original living trust, making life just that little less complicated.