It is not uncommon for supporters of living trusts as a means for distributing one’s estate to compare the often high cost of probate to the cost of creating a Revocable Living Trust.  Depending on the state you live in and the complexities of your estate, Probate can consume anywhere from 4% to 10% or more of your gross estate, (before debts are paid), based on a comprehensive study by AARP.  A decent Revocable Living Trust  might run from $1,200 to $2,500 more or less.  It seems clear that the cost of setting up a living trust is much less than the cost of allowing your estate to go through probate.   But, is that the only measure of cost you should compare?

Some would argue that a Living Trust should be managed by a professional, or corporate trustee and they charge fees commensurate with executors fees for a Will going through Probate.  There can be many reasons why the services of a corporate trustee would be preferable to using a family member,  however, in most cases, trusted family members can and do successfully settle trust estates without undue complication.

Unless the Settlor pre-determines the fees that may be charged by an individual or professional for managing and settling a Trust,  a typical trust will usually allow for “Reasonable Compensation by a Trustee”.   Reasonable compensation is often a standard approach since the courts have essentially defined that term to be the fees usually and customarily charged by professional corporate trustees in the geographic area where the Settlor died, or where the Trust administration is to take place.  It varies a little from here to there but is generally around .75% to 1.75% of assets under management on an annual basis (if the trust is managed for beneficiaries over time as opposed to being all distributed outright).

There can be additional fees associated with real estate commissions, brokerage fees to liquidate real estate or stocks, tax preparation fees from an accountant… all of which can generally apply anyway whether you are dealing with a Probate or a Trust.   The key expense items that usually are not part of a Living Trust’s settlement are court costs and attorneys fees.

Here is something important to note… most successor trustees who are beneficiaries DO NOT charge any Trustee Fee (maybe just reimbursement for out of pocket expenses)… The reason being that trustee fees are taxable to them… inheritance is not.  Sometimes taking a fee is warranted by a beneficiary who is acting as a Successor Trustee,  but it usually the exception more than the rule.

The bottom line is that a properly prepared and funded living trust, even if administered by a Successor Trustee who is a paid Corporate Trustee, should still be significantly more economical than the cost of Probate Administration in most cases.  In the wider analysis, the comparison of costs should not be the only factor looked at.  You should also look at the length of time each method will take, the likelyhood of any heirs who might seek to contest your wishes, and the short and long term needs of the beneficiaries.

Tags: Living Trusts by Greg Reese
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The concerns over the high costs and long delays associated with Probate are often central to the discussions over why living trusts are far superior to wills as estate planning tools, even for relatively small estates. For strictly probate avoidance purposes however, a living trust may not always be needed. Most states have a minimum asset threshold before probate becomes mandatory, and for those falling under the line, a formal probate is not usually required. For example if you live in California and your estate holds no real estate and the total value of your assets is less than 100,000, then your estate will probably not need to go through probate. This threshold is usually much lower in other states though, often in the neighborhood of $20,000 to $50,000. If this is your situation, then you should at least create a will with an attorney and consider making individual beneficiary designations for your accounts at the bank.

Most of us would agree that probate should be avoided if at all possible. This is not, however the only reason a living trust surpasses a will. In my opinion, the only true benefit of having a will is having a plan in place for the distribution of your assets at death. This is all a will can do for you but is only half a plan. A better plan also has a strategy for dealing with; your incapacity, the care and support of minor children and/or grandchildren, beneficiaries with special needs, or beneficiaries with severe lack of financial acumen or maturity. Remember that a will can only go into effect after you die and cannot help you in these important areas.

Suppose you and your spouse bought a home. If you are like most of us, you need two incomes to be able to pay the mortgage. Then suppose that your spouse gets in a terrible accident that leaves him or her incapacitated. They can’t work any longer so their income stops. A will won’t help you because your spouse is not dead. Your life insurance policy won’t help you for the same reason. You decide you need to sell the house but both spouses are on title and any sale or refinance of your property will require both signatures. If your spouse is incapacitated, then you are likely to have to go to court and spend $5,000 to $10,000 to have your spouse declared legally incapacitated and have the court appoint a conservator. Then, the judge will let you know if you may or may not sell the house, and what you may or may not do with the proceeds. A properly prepared living trust will allow you to almost immediately take the actions you feel are in the best interest of you and your spouse, without interference from the courts.

Providing for your children is usually the most important goal of your estate plan. Do you have children who are minors or not yet mature enough to handle the estate you are about to leave to them? In most states if you have a will, or use the generic will that the state imposes when you don’t, your children must receive their inheritance when they turn 18. Do they have the maturity and experience at that age to be good stewards of your estate? With a living trust you can set a more appropriate age for them to have access to or manage your estate (e.g. age 25 or later). You can even set parameters for them to earn the right to receive or manage their inheritance. During the ‘maturation’ years, your trustee is empowered to provide for your children’s health, education and welfare. If minor children survive you, a will generally leads to a strict court-ordered and supervised guardianship of your estate until your children turn 18. These arrangements are costly and restrictive, and again, your children must receive your entire estate at age 18. With a living trust there is no need for the court to get involved. Your trust would stipulate how and for whose benefit your assets were to be used, and would grant full legal power and authority for your trustee to carry out your wishes.

Remember to use a qualified attorney to make sure your will or trust is properly prepared. Avoid generic ‘do it yourself’ kits and form books. They can’t and don’t address every family’s unique needs and can be disastrous in the end.

Tags: Living Trusts by Greg Reese
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