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Your home is your most valuable and treasured asset. You should ensure your home is passed on to your heirs without conflict or hassle though a trust. With a trust you can avoid probate, protect against incapacity, control asset distribution, and avoid conflict.
A trust is an agreement between the you the "Settlor" or "Grantor" and the “Trustee” to hold title to assets for the benefit of your designated person or persons referred to as the “Beneficiary.” When you transfer title of your assets to the trustee and place assets (such as your home) into a trust, you are transferring title to your legal heirs. In doing so, your heirs do not have to go to Court to get an Order transferring title of your home to them.
There are two types of trusts used to pass on your home: a revocable trust and an irrevocable trust. One has no asset protection but allows you to maintain control and flexibility during your lifetime. The other will provide asset protection but cost you management and control of the property. Both will allow you to pass on your home outside of court.
With a revocable living trust you are making an agreement with yourself for the benefit of yourself and will serve all three roles. Settlor, Trustee and Beneficiary. With a revocable trust you can change the terms of your trust or revoke it at anytime during your lifetime. In your trust, you will identify others that you want to control the trust and manage its assets (the Trustee) and inherit your wealth by collecting the income from managed assets and distributions of income and assets per the your terms. The court will not have to make these decisions because you have made them instead.
During your lifetime and capacity, you will maintain control of the assets held by the trust and will be considered part of your estate for estate tax purposes and, thus not protected from your creditors or lawsuits during your lifetime. Thus, the main benefit of holding your home in a revocable living trust is that you can pass it on to your heirs on your terms without court intervention.
With an irrevocable trust the terms of the trust cannot be changed or terminated once it’s been executed. When you transfer your assets into an irrevocable trust, you are essentially giving them away. Your designated trustee manages the assets for the benefit of your designated beneficiary. Unlike the revocable trust, the assets you give to an irrevocable trust are not considered part of your estate because you no longer own them. If properly constructed, the irrevocable trust will provide asset protection against your creditors and lawsuits and typically won't be subject to estate taxes.
Many people with create a will and name their heirs as the successor owners of their home and assets. This will not avoid probate court. The court will have to determine the validity of the will and validate the succession before issuing an Order transferring title of your home and assets to your heirs. During probate, the court oversees the will’s administration, ensuring your assets are distributed according to your wishes, with automatic supervision to handle any disputes.
Probate is expensive. Your will is public and your creditors will be given the opportunity to raid your assets to satisfy your debts and potentially exhaust them before your heirs can take possession. Under California law, your estate will have to pay a percentage of its total value to the estate's attorney and executor. And probate is lengthy process that can take 14 to 18 months depending on the complexity of your estate.
Also, if you become incapacitated and only have a will in place, you have to petition the court to appointed a conservator to manage your affairs and guardian to care for your children in some cases. This is also a costly and time consuming experience. Don't leave these decisions to the court, you should select the person you want to manage your affairs and care for your children if you become incapacitated.
As you can see, if you are a parent of minor children, a will is truly insufficient. While you may be able to name guardians for your children in your will, you will not be able to control distribution or your assets unless you set up a trust. With a trust, you determine how, when and under what circumstances your assets are distributed to your children and can select who manages your assets for them. You can prevent your children from irresponsibly spending their inheritance and protect the inheritance from unscrupulous guardians that may spend your children's inheritance on themselves.
Lastly, a will that names multiple heirs can lead to conflict among the heirs. This is particularly true with a home that must then be sold so that funds can be distributed if an agreement otherwise can't be reached. In a trust, you decide what happens to your home, who can manage the home and distribution of assets to your heirs.
In order to avoid probate court, your home must be in the trust and the legal title transferred to the trustee. You cannot simply list the assets you want in the trust, you must also transfer the legal title of your home and any other assets from your name into the name of the trust which will "fund" the trust. If you do not properly fund your trust, you will not avoid probate court. We can help you properly fund your trust, avoid probate court and determine what type of trust meets your needs!
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