Trusts and Probate Estate

What steps can be taken in order to avoid paying the probate tax and administration expenses after your death? There are several ways in which you can arrange your affairs in order to avoid a probate process after your death. To begin with, you can establish a living trust during your life and fund it with all of your assets. The assets held in such trust would not be included in your probate estate unless they pass to your estate under the terms of the trust agreement establishing the trust. If you want to maintain some control over the trust assets, you would need to establish a revocable trust, in which case you will be treated as owning assets held in trust and, therefore, would be required to pay taxes on any income, including capital gains, generated by the assets held in trust during your life.

If you want even more flexibility and control over your assets, and yet still achieve the same objective, then you can establish a living trust and fund it upon your death through the provisions in your will. Thus, by providing for specific instructions in your will to transfer (“pour-over”) all of your remaining assets upon your death into the already-established trust, you would achieve the same result as in the first scenario.

The benefits of establishing a trust, however, go beyond simple probate tax and administrative expenses avoidance. For instance, it also would allow you to avoid having your dispositive scheme to become a matter of public record as is the case with a will. In other words, a funded living trust avoids publicizing the nature and value of the assets you would own at your death. Another important benefit of establishing a trust, especially in cases where the assets are substantial, is a likelihood of avoiding a delay in the administration of the estate, since the assets in the trust will normally become available to the beneficiaries immediately.


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