A living trust is a legal document that is created by the grantor, also known as the trustor, settlor, or trust maker, while they are still alive. The document details how the trustor wishes the estate to be managed as well as dispersing assets to predetermined beneficiaries after their death. Trusts are usually one aspect of an overarching estate plan. When the grantor transfers their assets to the trust, the assets don't belong to them anymore. The trust owns the assets, and the trustee has control of them. Typically, with a living trust, the grantor is also the trustee until they pass away. 

Trust can be used as a financial device to transfer money, property, and assets to other individuals or organizations. While you can use a will similarly, a trust does not have to go through probate, which is the court process of transferring assets to beneficiaries. The majority of trusts include revocable, irrevocable, and testamentary.

A revocable living trust is set up by the grantor while living. It is the most common type of trust and can be changed at any time until the grantor becomes incapacitated or dies. Upon the death of the grantor, the trust becomes irrevocable. In a revocable living trust, the assets are still considered the property of the grantor, so the assets are subject to creditors, and taxes must still be paid. Revocable living trusts offer the following advantages:

• Quick access to assets for named beneficiaries
• Erasure or reduction of probate fees
• Privacy (unlike wills which go into the public record)
• Healthcare instructions requested by the trustor 
• End of life instructions requested by the trustor

An irrevocable trust cannot be changed or revoked unless the beneficiaries of the trust give specific permission. Once the grantor transfers assets to the irrevocable trust, the grantor no longer has rights to the assets. While this may seem risky, there a many reasons someone may choose this option, including the following:

• Reduce property to remain eligible for government benefits such as Medicare and Social Security
• Tax shelter advantages and benefits
• Assets cannot be used to settle legal judgments (many people in vulnerable occupations like doctors and accountants will choose this route)

A testamentary trust is a trust created through directions in a will after the grantor dies. The grantor will establish a trustee to manage the assets for the beneficiaries of the trust. This kind of trust can be used to distribute assets when certain conditions are met, such as a beneficiary's access to funds for college up until the age of 25. A testamentary trust can also help with the following:

• Protect assets for children from past relationships
• Preserve money for beneficiaries with special needs
• Donating money to charitable organizations
• Ensure your surviving spouse is financially provided for
• Reduce tax liabilities
   

Yes, you should still make a will. While it may seem confusing to need a will and a trust, there are reasons to have both, even though the will may never be used. Here are two reasons:

Designating a guardian for minor children - A trust cannot be used to name a guardian for minor children. So if you currently have children under 18, you should designate a guardian in a will.

Addressing property that has not been transferred to the trust - People create trusts all the time and forget to transfer assets. For example, you may purchase property or inherit assets from someone else. If this property isn't in the trust, it will not be disbursed by the trust. A will is a backup to ensure everything goes where it's intended, and the state isn't forced to make decisions based upon state law. 

When you have a large or complex estate or have unique needs, hiring a lawyer can help get the trust executed and resolve all of your questions while putting your mind at ease. You should definitely hire a trust lawyer under the following conditions:

Your estate is near the estate tax exemption - Many states have estate taxes that must be paid. Some states levy taxes on estates with a value above $1 million. Others have a higher threshold. If your estate is close to being subject to estate tax exemption, it's critical to get an attorney's advice. 

Currently, a federal estate tax applies to estates valued at $11.4 million. However, that is set to be reduced by 50% in 2026 to $5.7 million. The estate must pay taxes before any assets can be released to the beneficiaries. Because of this, it's critical that enough funds are reserved in the trust to meet this requirement. Otherwise, the tax falls upon your heirs. Our trust lawyers can ensure this is set up correctly and even help mitigate taxes to ensure your money goes where intended.

You have a child with special needs - A special needs trust is a way to provide benefits to a special needs individual while also maintaining their ability to get federal and state benefits to which they are entitled to have. Some government benefits allow very little in the way of income and assets. For example, to retain Supplemental Security Income, an individual may not have more than $2000 in countable resources.

A special needs trust can ensure your special needs beneficiary can continue receiving assistance but only for things that are not covered through government benefits. However, these types of trusts are complicated, so getting the advice of an attorney is essential.

You need advice about funding the trust - Our estate planning lawyers will ensure that your trust financially protects you and your beneficiaries get what you intend them to have. 

You intend to include complicated conditions on how and when beneficiaries get assets - Suppose you have an adult child with a substance abuse problem and wish to leave the money on the condition that they go through rehab successfully. In that case, you will need to have that outlined in the trust. 

However, some conditions could be challenged by the court if they don't follow public policy, so that's why it's vital to get the advice of an attorney. For example, the condition on beneficiaries only marrying within a specified faith may get shot down in a court of law.

A trust isn't necessary for everyone. For example, if you are single, are childfree, rent, and don't have a lot of assets, there's little reason to set up a trust. On the other hand, if you have children who are still minors, a special needs child, or have a lot of assets, a trust could be a great legal device to use. 

While there could be many reasons to create a trust, the most common are the following:

• To avoid the slow probate process and fees associated with it
• Protect assets for minor children until they reach maturity
• More control than a will, such as requiring conditions be met 
• Avoiding or reducing estate taxes
• Managing assets when the grantor is incapacitated 
• Shielding finances from being on public record in probate court

Creating a living trust usually starts with a basic legal template and includes information such as the following:

• The creator of the trust (typically this will be you, the grantor)
• The trustee who is in charge of the trust (again, this will typically be you)
• The trustee who will be in charge of the trust when you die or become incapacitated (this trustee is usually someone close with high integrity)
• The beneficiaries who will receive assets in the trust
• The names of trustees that are appointed to manage the property of children until they come of age and are capable of handling it on their own

Once you have all of this down on paper, you will need to sign it in front of a notary. Next, you will need to use a deed or transfer documentation to transfer the property of your trust into the trustee's name, abiding by the terms of the trust. Finally, you will transfer the ownership of assets to the trust, including re-titling vehicles and real estate. If you want to transfer things like life insurance policies, you will need to create an irrevocable trust.

Can you set up a trust without a lawyer? Yes, you certainly can, but a lawyer can ensure it's set up correctly, making it valid and that every possible advantage is being used to bypass legally avoidable taxes. No one expects a layperson to understand all of the complexities involved in creating a trust. That's why we have lawyers that specialize in estate planning. 

Our offices are set up across the U.S., so we'll have experts that are knowledgeable about your state's laws as well. Contact us anytime to talk about your estate planning needs and gain the confidence that your wishes will be followed to the letter once you're gone.