A pour-over will is a legal document that ensures an individual’s remaining assets will automatically transfer to a previously established trust upon their death.
How a Pour-Over Will Works
A pour-over will works in conjunction with a trust. In estate planning, trusts provide a way to avoid the probate process when transferring assets after the grantor’s death. When the time comes to settle an estate, assets funded into the trust get distributed to beneficiaries as directed by the grantor. A pour-over will covers assets that the grantor has not funded into the trust at the time of death. Absent explicit directions provided via a will, remaining assets would instead be subject to laws of intestate succession as established by the jurisdiction in which the individual died.
Pour-over wills act as a backstop against issues that could frustrate the smooth operation of a living trust. They ensure any assets a grantor neglects to add to a trust, whether by accident or on purpose, will end up in the trust after execution of the will. The will can also provide extra protection against legal issues with a trust by stipulating that the assets intended for the trust be distributed to the trust’s beneficiaries should it become invalid or, in the case of an unfunded trust, should it become legally difficult or impossible to fund at the time of the grantor’s death.
Click Play to Learn How Pour-Over Wills Work
Revocable and Irrevocable Trusts
Estate plans typically pair pour-over wills with living trusts, which require that grantors transfer assets to them prior to their death. Most smaller estates use revocable living trusts, which allow grantors to control the assets in the trust until they pass away. Larger estates will sometimes use irrevocable trusts to reduce the tax burden for beneficiaries, particularly if they will be subject to an estate tax. Once grantors transfer assets to an irrevocable trust, the assets come fully under the control of the trustees. Pour-over wills work with either type of trust.
Pour-Over Will Example
Suppose an elderly couple wishes to distribute an estate to their children and grandchildren. To minimize the legal hassle of multiple probate processes that would be triggered by their writing individual wills, they decide to establish a living revocable trust into which they can transfer their assets. Alongside the trust, they both draft pour-over wills directing any remaining assets be added to the trust upon their deaths. When one spouse dies, their car, which the couple titled only in that person’s name, ends up flowing smoothly into the trust. The other spouse continues to act as a trustee, so they may continue to use the car as if it were titled to themselves, even though its title gets transferred to the trust. Upon the second spouse’s death, any assets that have remained in that spouse’s name also get transferred to the trust. A named successor trustee then manages or distributes the assets as directed by the terms of the trust.
Erika Rasure is an Assistant Professor of Business and Finance at Maryville University. She has spent the past six years teaching and has included FinTech in personal finance courses and curriculum since 2017, including cryptocurrencies and blockchain.
A revocable living trust is a legal document that names beneficiaries, creates trustees to act in your interest, and dictates how you'd like your assets divided if you're incapacitated or otherwise unable to make decisions.
Living trusts keep your assets out of probate court if you pass away, because the trust technically owns everything. The person you name as the trustee takes over your assets and acts according to the wishes you laid out in the trust.
However, not all of your assets can or should go into a living trust. Here are some items that you shouldn’t include in a living trust. Everyone’s financial situations and circumstances are different—make sure you talk with your estate planner to ensure that you include assets that you can legally leave to your beneficiaries.
Qualified Retirement Accounts
You can retitle qualified retirement accounts, such as 401(k)s, 403(b)s, IRAs, or qualified annuities to the name of the trust. However, this triggers income taxes on the entire amount in the year the transfer takes place.
If you want to use your trust to pass on and distribute your retirement funds, you can name the trust as your account's beneficiary and have the trust worded to structure the distributions among your heirs.
Health Savings Accounts and Medical Savings Accounts
Health savings accounts (HSAs) and medical savings accounts (MSAs) are tax-exempt trusts or custodial accounts designed to pay qualified medical expenses.
Your HSA or MSA funds may be subject to taxes after transferring them to the fund.
You can't retitle these accounts in the name of your trust. If you feel that you have to place your HSA or MSA into your trust, the trust should be designated as the primary or secondary beneficiary of these accounts.
Uniform Transfers or Uniform Gifts to Minors
Uniform Transfers to Minor Accounts (UTMAs) or Uniform Gifts to Minor Accounts (UGMAs) are established to benefit minor children. The child named in the account is considered the sole owner of the account, rather than the person who established it or any custodian named.
In this case, a successor custodian (and maybe a third) should be designated. This keeps the trust from being sent back to probate court if the primary custodian dies before the minor reaches adulthood.
You could change your life insurance policy’s ownership to be the trustee named in your trust without triggering any tax consequences. You could also assign your revocable trust as your life insurance beneficiary. However, creditors can access these funds. Revocable trusts are not able to protect assets from creditors if you die with debts.
If you have a life insurance policy, it is best to establish beneficiaries using the policy rather than retitle it to a revocable trust. If you feel that you must place the funds from your life insurance policy into a trust, check with your estate planning attorney before doing so.
Generally speaking, motor vehicles can be retitled into your trust—cars, trucks, motorcycles, boats, scooters, and even airplanes. However, some states maintain that this is a transfer of title, because the trust and the person are legal entities. They might charge title-transfer fees and taxes for issuing a new title in the name of the living trust.
Check with your estate planning attorney to understand how to avoid probate of your vehicles in your state.
If this applies in your state, then you may want to purchase your vehicle in the name of the trust. In some states, probate is not necessary to transfer ownership of a vehicle after the owner dies. Other states allow vehicle owners to designate a beneficiary.
The "living trust" has become an increasingly popular estate planning tool because of the many benefits it offers.
by Michelle Kaminsky, Esq.
updated May 13, 2021 · 5 min read
About 20% of Americans now have living trusts as part of their estate plans. Perhaps you’re wondering whether you should, too.
First, we’ll talk about what a living trust is and what it does, and then we’ll get into the benefits of a living trust so you can better decide if you should be among that 20%.
What Is a Trust?
A living trust (“inter vivos” or “revocable” trust) holds the assets of the trust creator in a trust for his or her benefit during their lifetime. Then, upon the death of the trust creator, the assets are transferred to designated beneficiaries by the “successor trustee,” the person who had been chosen by the trust creator to do so.
A living trust’s terms can be changed at any time, or the trust may be canceled entirely, which is why it’s called revocable.
Why might you be interested in including a living trust in your estate plan? Here are the top benefits of a living trust:
1. A Living Trust Avoids Probate
Probate is the court-supervised process of distributing a deceased person’s estate. Depending on the estate, as well as the assets and individuals involved, probate can become a lengthy and costly process, which may not only delay distributions to your beneficiaries but also cut down on what they inherit.
By placing your property in a living trust, however, you can avoid probate because the successor trustee distributes assets according to the trust creator’s instructions without court intervention.
This can mean a faster distribution to your heirs — shortening the time frame from months or years to just weeks — without any additional expenses to the estate.
The avoidance of probate may be particularly helpful if you own property in another state, as it would pass directly to your beneficiary and not be subject to probate in that state.
2. A Living Trust May Save Money
As described above, a living trust can save money by avoiding probate expenses at your death.
Living trusts are also likely to hold up better than a will in the event that someone comes forward to contest the distribution, which can also save your estate money.
Regarding the initial cost, though, making a living trust is likely to be more expensive than creating a last will and testament. A living trust is a more complex legal document that requires more actions because you also must “fund the trust” with your assets, that is, transfer ownership of your property to the trust. You may also wish to change the beneficiary on your life insurance or IRA or 401(k) plan, each of which requires separate paperwork.
Living trusts may provide savings for married couples in the form of joint living trusts, but usually, there isn’t much difference in estate and income tax savings with a living trust.
3. A Living Trust Protects Your Privacy
As mentioned above, one of the benefits of a trust is the avoidance of the probate process.
A living trust is a private document between the parties involved and does not become part of the public record. In other words, no one can later go and search public records to find out more about the distribution of your estate.
A will, on the other hand, is public record, so everything in it becomes public as well.
4. A Living Trust Assists in the Event of Incapacitation
If you become ill or incapacitated, the person you have chosen as successor trustee can step in and manage your affairs without the intervention of a court. In this way, you can avoid a court-appointed conservatorship for your affairs — the kind that Britney Spears’ father famously had over his daughter’s affairs.
Moreover, since a living trust is revocable, you can dispute the implication that you are incapacitated and retain control of your own affairs.
5. A Living Trust Provides Certainty and Peace of Mind
When drawn up correctly, a living trust sets out a clear plan to deal with all of your assets. This can help prevent you from unintentionally disinheriting someone, can help you provide care for a loved one with special needs into the future, and even protect assets from certain people.
All of these things can give you peace of mind now, knowing that your estate will be handled exactly as you wish later. The existence of the trust can also provide certainty and comfort to your loved ones during an already stressful time because you’ve laid everything out for them.
Deciding Which Is Better: a Trust or a Will
In choosing what is best for your estate—living trust vs. will—it is important to understand the differences between them.
The biggest difference is that a will has no effect on your property while you’re still alive and only takes effect after your death.
A major benefit of the living trust is that it will not have to go through the probate process, as a will must do.
Note, though, that in conjunction with a living trust, you should have a “pour-over will” to catch any assets that have inadvertently been left out. This would ensure that your property doesn’t fall subject to state intestacy laws, which mandate the distribution of assets not covered by a will or trust. The pour-over will does have to go through probate.
As described above, a will offers no privacy as it becomes public record. Your estate may also see cost savings with a trust as opposed to a will.
Ready to Make a Living Trust?
If you’ve decided that you’re ready to create a living trust, you can get started immediately by taking an inventory of your assets, thinking about who you want to inherit what, and also considering carefully who you will choose as your successor trustee.
Setting up a trust doesn’t have to be time-consuming or complicated, especially since now you can find living trust forms online to streamline the process. After answering some simple questions, you’ll be well on your way to incorporating a living trust into your estate plan — and to enjoy better peace of mind about your estate in general.
A revocable living trust is about more than just avoiding probate
Joshua Lee © The Balance
The whole concept of a living trust has a certain mystique. You might think they’re only for very wealthy people, or that they’re a lot more difficult to create than a simple last will and testament. But they can be a perfect estate-planning tool for others.
Revocable living trusts come with both pros and cons, from avoiding probate to the costs associated with setting one up. Deciding if one is right for you can depend on your personal concerns and circumstances.
Advantages of a Living Trust
Assets held in a trust avoid probate because the trust itself doesn't die with its creator—called the grantor or trustmaker in legal terms. The trust remains up and running after the death of its grantor, and it can transfer its property to anyone the grantor has provided for in the trust's formation documents, according to the grantor's own terms. There's no need for court oversight or involvement.
Probate avoidance is probably the greatest advantage of a revocable living trust. It can be a particularly important consideration if you own real estate in more than one state because your loved ones would face with two or more probate proceedings in this case if you just leave a will. Each property would have to be probated where it’s located.
A revocable living trust can also give your loved ones almost immediate access to cash during a difficult time. Your loved ones are typically unable to gain access to your bank account until a probate estate has been officially opened. Ask yourself how they'll pay for funeral costs and other necessary expenses until this time.
Opening a probate estate can take several weeks.
Avoid Guardianship or Conservatorship
Revocable living trusts aren't just about death. They can allow your loved ones avoid both a costly court-supervised guardianship if you become disabled as well as a costly court-supervised probate proceeding after you die.
Your loved ones and your property would be subject to the restrictive rules of guardianship or conservatorship if you should become incapacitated. Forming a revocable living trust involves naming a successor trustee, someone to step in and manage the trust for you if a time comes when you’re no longer able to tend to your personal affairs yourself.
Your successor trustee can take control of your trust assets without the interference of the court after following your trust's provisions for determining your incapacity.
Your trust's provisions are your provisions—you establish them when you create the trust.
Keep Things Private
Probate is a public proceeding. Anyone can go to the courthouse and take a look at each and every document filed there, including your will. Strangers can even look up court dockets and filings online in some states. Anyone can see the extent of what you owned to leave to others, and they can find out who got what when probate is opened and your will is placed with the court.
Trust documents are never filed with a court, so they don't become a public record.
Disadvantages of a Living Trust
Funding a Trust Is Expensive. And a Pain
It generally costs more time and money to set up and fund a revocable living trust than to simply write a will—as much as three times more, at least initially. But in actuality, the cost can end up being pretty comparable because probate costs money, too. That expense would have to be added to the cost of writing a will for a fair comparison.
You must create new deeds and other documents to transfer ownership of your assets into the trust after you form it. You'll have to contact your bank, investment and insurance companies, and transfer agents. You'll have to change account and stock ownership and update beneficiaries. New stock certificates must be issued. Cars and boats must be retitled.
This is the major drawback to using a revocable living trust for many people, but it's not worth the time, money, and effort to create one if the trust isn't fully funded. The type of assets you own and what must be done to get them funded into the trust should be carefully considered before you decide to use this estate-planning tool.
You'll Still Need a Will and an Estate Plan
Your trust might only be partially funded when you die if you acquire new assets and neglect to move them into the trust. It can be surprisingly easy to forget to transfer title to newly acquired assets to your trust as time goes by.
You’ll need a special type of will called a pour-over will to “catch” your unfunded assets in this case. The will “pours” them into your trust at the time of your death, as the name suggests. Your pour-over will must be probated, but it can still be an invaluable worst-case-scenario backup tool.
Additionally, some assets can’t be owned by a trust. These include certain retirement plans and assets you might hold jointly with someone else. For example, you can’t transfer ownership of your half of a house to your trust if you own it as a joint tenant. You’ll need an alternate means of moving ownership of these assets, but you can still avoid probate if you make use of beneficiary designations.
Your Heirs Have Longer to Contest a Trust
Most states have specific statutes that dictate who can challenge a last will and testament and how long they have to do so. The time period can be as little as 30 to 120 days.
Contrast this with contesting a living trust, which until recently was a wide-open court proceeding subject only to state-specific statutes of limitation. These statutes are usually one to five years, but they're sometimes even longer.
Several states have begun to close this gap by enacting specific laws that severely restrict the timeframe for challenging a trust.
The Bottom Line
It's important to speak with a legal professional when you're tackling something as important as estate planning. You'll want to be completely sure that you understand all the pros and cons of your decisions. This article is intended to convey general information and might not apply directly to your unique concerns. It's not legal advice. For that, you'll need an attorney.
Learn about the different types of wills and how to choose the will that is right for you in this guide from the estate planning experts at Trust & Will!
Head of Legal , Trust & Will
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It’s normal to feel overwhelmed when you’re starting the Estate Planning process. In fact, it’s not just normal, it’s also understandable. There are a lot of concepts involved in Estate Planning. But the easiest way to get through the process is one step at a time.
One of the first things you should try to understand is what the different types of Wills are. Knowing which Will is right for your needs is important, so you can feel confident you’re setting up exactly what you need to protect your legacy and take care of your loved ones in the future. Keep reading to learn more about the multiple types of Wills available.
How Many Different Types of Wills Are There?
There are 9 different types of Wills to choose from. They widely differ from each other, and truth be told, any one really isn’t superior to, or better than, another. The best Will just depends on a combination of your current situation and any future goals you have about what you want your Beneficiaries to inherit. Here we’ll discuss, in detail, 9 types of Wills:
1. Living Will
Despite the similarity in name, a Living Will actually does a lot more than a traditional Last Will and Testament can. Also called an Advance Healthcare Directive, a Living Will is good for end-of-life planning and to make your wishes known regarding medical care you may want in the future.
In the event you become incapacitated for any reason and you can’t let doctors or loved ones know what you want, a Living Will can speak for you. The benefit of a Living Will is it greatly eases the burden on loved ones if tough decisions need to be made on your behalf. Note that Living Wills become immediately ineffective once you pass away.
CAVEAT: Make sure your Living Will is valid in and specific to your state, as requirements can vary.
2. Testamentary Trust Will
Testamentary Trust Wills are sometimes referred to as Will Trusts or as Trust Under Wills. They are written inside a Will and can be used to direct asset distribution after your passing. This type of Trust differs from other Trusts in that it isn’t actually formed until after your death. Testamentary Trust Wills can be a good option if you need to set up long-term care for Beneficiaries.
CAVEAT: Whereas most Trusts allow you to avoid it, Testamentary Trust Wills will go through probate, which can be a significant disadvantage.
3. Pour-Over Will
Pour-Over Wills work in conjunction with Revocable Living Trusts. They are designed to offer more privacy than a regular Last Will and Testament and work by “pouring over” any assets that don’t directly go to a Beneficiary into your Trust after you pass away. Pour-Over Wills are useful if you haven’t put everything into your Trust.
CAVEAT: Property must go through probate before it ends up in your Trust, which can take time and money and cause stress on your loved ones.
4. Simple Will
Simple Wills, much like the name suggests, are simple in that they do not contain a lot of clauses. However, just because they’re simplistic in nature doesn’t mean they can’t be effective. You can do much of your basic planning in a Simple Will, including designating a guardian for minors and appointing an Executor.
CAVEAT: Simple Wills may not be the best option for very complicated or large estates.
5. Joint Will
Joint Wills are a Will within one document for two people. They can be used in cases where spouses want to initially make each other Beneficiaries after one passes, and then establish final Beneficiaries being a child or children once both partners are gone.
CAVEAT: It’s important to note that Joint Wills automatically become irrevocable upon the first spouse's death.
6. Deathbed Will
Deathbed Wills are not desirable for several reasons. The biggest one being they are not as effective as other types of Wills. Made on a deathbed, and most of the time under dire circumstances, there are often questions about mental stability and how comprehensive a Deathbed Will is.
CAVEAT: While any Will is better than none at all, Deathbed Wills are more than likely to create problems for your loved ones after you pass.
7. Online Will
Relatively speaking, Online Wills are a fairly new concept in the world of Estate Planning. It’s true that there are very trustworthy, authoritative sources out there to help you create an effective and adequate Online Will. But you need to be careful about which DIY online company you use to create your Will or any other Estate Planning documents.
CAVEAT: Not all Online Will companies are the same. It’s an absolute must that you read online reviews. And most importantly, be sure that whichever company you go with has state-specific documents and forms that are created, drawn up and reviewed by actual lawyers and Estate Planning experts.
8. Holographic Will
While not all that common, Holographic Wills do actually still occasionally exist. These are handwritten Wills and are typically the result of extreme, unexpected circumstances such as war or another life-threatening situation.
CAVEAT: Holographic Wills are not recognized as valid in every state.
9. Nuncupative Will
Nuncupative Wills are a verbal explanation that expresses final wishes. Like Holographic Wills, Nuncupative Wills are not recognized in every state. Additionally, some states have strict stipulations on what would qualify as a valid Nuncupative Will. For example, a state may recognize them, but only if they’re written down after being spoken.
CAVEAT: Despite the fact that some states will accept a Nuncupative Will as valid (under certain circumstances), most often, if made by a civilian, they will not be recognized.
Whatever type of Will you end up using, the important thing is that you put some sort of Estate Plan in place. Planning for the future, especially one you know you won’t be in, can be difficult. But it’s one of the smartest, and kindest, things you can do for your loved ones. Making decisions for them today, so they aren’t faced with trying to navigate your loss not knowing what you want, truly is a way to leave a loving legacy that will last. Read more about Wills today, and if you’re ready to create or update your Will, reach out to Trust & Will to get started.
While it’s not as easy as popping online and quickly changing a life insurance beneficiary, life estates can indeed be changed or terminated. It’s best to have responsible legal representation to guide you through the process and, if possible, be on good terms with everyone involved in the transaction.
What Is a Life Estate Deed?
A life estate deed is a form of pre-gifting property to beneficiaries before death. It’s a popular way to avoid the probate process and to let children or other beneficiaries know what part of a estate they will receive. When the owner of the property dies, the beneficiary needs only to file his or her death certificate to establish ownership.
In a life estate deed, the property in question is split between two kinds of parties. One, called the life estate, is gauged depending on the number of years the owner lives. The other, referred to as the remainder interest, or just “a remainder,” transfers to others. Both the remainder interest as well as the life estate are passed on.
Who Is Involved in a Life Estate Deed?
Let’s have a look at the kinds of owners involved in a life estate deed:
- Some families decide to renovate or update a home to accommodate a parent aging in place, or to make the property more attractive for future buyers in a way the original owner can still enjoy while he or she is still alive.
- Others agree to split the costs of property taxes and repairs between parent and children, or amongst the beneficiaries only.
- Sometimes, life tenants and future tenants agree that the future tenants will pay for all or most repairs, taxes, and insurance, and then are reimbursed out of the life tenant’s estate once the will is executed.
Life estate deeds can be a stable and comforting way to arrange for the dispersal of one’s estate. They are a popular choice for aging parents who enjoy stable relationships with adult children who live nearby. At the same time, if the person who originally owns the property suddenly decides to sell it, the process can become difficult.
Modifying a Life Estate Deed
Several complications can tangle a life estate deed. They are difficult to change, and require the consent of every one of the beneficiaries. In the event the property owner decides that he or she wants to move to live near faraway grandchildren, for example, he or she must obtain the legal permission of every remainder beneficiary. Divorce, bankruptcy or sudden disability on the part of any one of the remainder beneficiaries can also deeply complicate a life estate deed.
Since the grantor has handed over control of his or her property, he or she cannot change the life estate deed itself unless all of the future tenants agree. Therefore, in order to change or terminate the life estate deed, all of the future beneficiaries must be accessible and with the capacity to legally sign for themselves.
Those who are considering a life estate deed, but who also want to have the ability to change it, might consult their attorney about adding a “power of appointment” clause to the document language. A power of appointment states that the grantor may reduce a beneficiary’s stake in ownership, or change the person entirely. This allows the grantor more power.
How do you keep assets out of probate? If that estate planning question is on your mind, you should know that there are two basic ways to accomplish that objective.
One, you could create a revocable living trust. You can serve as its trustee, and you can fund it by retitling certain accounts and assets into the name of the trust. A properly written and properly implemented revocable living trust allows you to have complete control over those retitled assets during your lifetime. At your death, the trust becomes irrevocable and the assets within it can pass to your heirs without being probated (but they will be counted in your taxable estate). In most states, assets within a revocable living trust transfer privately, i.e., the trust documents do not have to be publicly filed.
If that sounds like too much bother, an even simpler way exists. Transfer-on-death (TOD) arrangements may be used to pass certain assets to designated beneficiaries. A beneficiary form states who will directly inherit the asset at your death. Under a TOD arrangement, you keep full control of the asset during your lifetime and pay taxes on any income the asset generates as you own it outright. TOD arrangements require minimal paperwork to establish.
This is not an either/or decision; you can use both of these estate planning moves in pursuit of the same goal. The question becomes: which assets should be transferred via a TOD arrangement versus a trust?
Many investment accounts can be made TOD accounts
Originally, that was not the case – for decades, only bank accounts and certain types of savings bonds could pass to beneficiaries through TOD arrangements. When the Uniform Transfer on Death Security Registration Act became law in the 1980s, the variety of assets that could be transferred through TOD language grew to include certificates of deposit and securities and brokerage accounts.
Many investment & retirement savings accounts are TOD to begin with
Take IRAs and workplace retirement plans, for example. In the case of those assets, the beneficiary form legally precedes any bequest made in a will.
The beauty of the TOD arrangement is that the beneficiary form establishes the simplest imaginable path for the asset as it transfers from one owner to another. The risk is that the instruction in the beneficiary form will contradict something you have stated in your will.
One common situation: a parent states in a will that her kids will receive equal percentages of her assets, but due to TOD language, the assets go to the kids not by equal percentage but by account, with the result that the heirs have slightly or even greatly unequal percentages of family wealth. Will they elect to redistribute the assets they have inherited this way, in fairness to one another? Perhaps, and perhaps not.
Placing valuable property items into a living trust makes sense
Real estate, ownership shares, precious metals, pricy collectibles such as fine art, classic cars, antiques, and rare stamps and coins – these are all worthy candidates for inclusion in a living trust. If your net worth happens to run well into the millions, these assets may constitute the bulk of it, and a trust offers a degree of protection for such assets that TOD language cannot. A trust also allows you to name a successor trustee, which TOD language cannot do for you.
A “pour-over” will usually complement a revocable living trust
As your net worth will presumably keep growing after the trust is implemented, a “pour-over” may be used to allow your executor to “pour over” assets not already in the trust at your death into the trust. That will mean added privacy for those assets in most states – but the downside is that these “poured-over” assets will be subject to probate.
Of course, you can add and subtract from the original contents of a revocable living trust as you wish during your lifetime – you can remove assets retitled into it when it was originally created and retitle them again in your name, you can “pour in” new assets, and you can sell or give away specific assets in the trust.
Is it ever wise to name a trust as the beneficiary of a retirement account?
Under three circumstances, it might be worth doing. If you worry about your heirs rapidly spending down your IRA assets, for example, naming a trust as the IRA beneficiary more or less forces them to abide by a stretch IRA strategy. Are there “predators and creditors” who want some of your net worth? That is another reason to consider this move. If you want to leave your retirement account assets to someone who is currently a minor, this idea may be worthwhile as well.
How complex should your estate planning be?
A conversation with a trusted legal or financial professional may help you answer that question, and illuminate whether simple TOD language or a trust is right to keep certain assets away from probate.
Revocable living trusts are often promoted as an effective alternative to probate. Even though Oregon’s probate system is relatively simple and inexpensive, many people seek an even quicker and easier mechanism for transferring the assets of a deceased person to the beneficiaries of that person. Revocable living trusts often serve this purpose, but they often create problems, too. To help you decide if a revocable living trust is right for you, here are answers to some of the most frequently asked questions about these trusts.
What is a revocable living trust?
A revocable living trust is a legal device that can be used to manage your property during your lifetime and to distribute your property after your death.
A revocable living trust is established by a written agreement or declaration, which appoints a “trustee” to administer the property transferred to the trust, and which gives detailed instructions on how the property is to be managed and eventually distributed. If you want your trust to substitute for a probate proceeding (court administration of property after death), you should legally transfer substantially all of your property to the trustee, and you should provide instructions to the trustee regarding how to distribute trust assets after your death. A revocable living trust agreement or declaration is usually longer and more complicated than a will, and transfer of assets to the trustee can be time-consuming and expensive. Any competent adult can establish a revocable living trust.
Who can be the trustee?
How is a revocable living trust established?
A will also plays a role in most estate plans that include a revocable living trust. In these estate plans, the will ensures that any property not properly placed in your trust before death can be transferred to it after death.
At your death your will can transfer up to $75,000 of personal property and $200,000 in real property to your trust through an affidavit filed with the court. Your will can transfer assets of greater value to your trust through the probate process. You can also have life insurance and certain pension accounts paid directly to the trust.
Here is an example of how trust assets should be registered: “John Doe, Trustee Under the Marty Smith Trust Agreement Dated January 1, 1990.” The trustee should not hold trust assets individually as “John Doe” without the additional information. The trustee must keep separate records for trust assets and might have to file separate income tax returns for the trust. If the trustee does not obey these rules, the trust may not avoid probate.
Probate and Revocable Living Trusts
A revocable living trust avoids the public process of probate, because you collect your assets and transfer them to the trustee before you die. The trustee then transfers your assets to your beneficiaries after your death. If you establish a trust but fail to transfer your assets to your trustee, it is unlikely that you will avoid probate.
If you die owning real estate outside Oregon, a court proceeding might be required in each state where real estate is located. A revocable living trust can avoid these extra court proceedings only if that property is transferred to your trust.
Sometimes it is not a good idea to avoid probate.
For instance, in a probate proceeding, your personal representative has special powers to deal with your creditors and can force them to file claims with the court or lose their claims. The trustee of a revocable living trust now has similar, optional powers to deal with creditors; however, using these powers may require some additional expense and delay, as in probate.
Even if you want to avoid probate, there may be better ways to do it. With regard to real property, you can execute a transfer-on-death deed which allows the death beneficiary named on the deed to automatically assume ownership of the property upon your death, with no need for probate. Joint tenancy ownership of specific assets, with the right of survivorship, can be a cost-effective way to avoid probate on the death of the first joint owner. There are several ways to pass bank accounts at death without probate, including joint accounts with right of survivorship, trust bank accounts, and so-called “payable on death” accounts. Most pension plans and life insurance policy proceeds pass under beneficiary designations that avoid probate without use of a revocable living trust. Depending on the nature and amount of property, one or more of these non-probate devices could be a less expensive way for you to avoid probate. Be aware though, that some of these non-probate devices can result in consequences relating to creditors, taxes, eligibility for publicly provided long-term care, and loss of independent control over an asset.
What is a conservatorship?
If you transfer all of your assets to a revocable living trust and give your trustee detailed instructions on how to handle your assets if you become disabled, there should be no need for a conservatorship. Your written agreement or declaration can specifically define a process for establishing that you are incapacitated. In some revocable living trusts, your trustee is authorized to make this determination. In others, your trustee is authorized to rely on a letter from your physician as proof of your incapacity.
A conservator can establish, or fund, a revocable living trust if: 1) the trust would be a more efficient way to administer the property of the incapacitated person; and 2) use of the trust would be consistent with the person’s overall estate plan. A special court order is needed to do this, however.
Durable Power of Attorney
This document appoints another person as your “attorney in fact” to handle your assets. A durable power of attorney may briefly and generally describe the authority of your attorney-in- fact, or it may specifically itemize, in great detail, the actions that you authorize your attorney-in-fact to take on your behalf. A durable power of attorney is less expensive than a revocable living trust, because it involves no transfers of assets and no estate distribution plan upon your death.
However, durable powers of attorney frequently give no direction to your attorney-in-fact regarding your plans for investments, money management or distribution. They generally contain no written restrictions on their use.
With a revocable living trust, it is possible to not transfer all assets to the trustee immediately, but specifically to authorize the attorney-in-fact to finish funding the trust if you become incapacitated. This approach will not avoid probate, however, if the trust funding is not completed before you die, because the power of attorney dies with you.
Does a revocable living trust avoid taxes?
What does a revocable living trust cost?
If you do not plan to serve as your own trustee, you should consider any fees you might want to pay the trustee and whether those fees would replace fees that you are already paying to manage your assets.
A revocable living trust plan should include the trust document, the transfer of assets to the trust, a “pour over” will to add any other assets to the trust, and a durable power of attorney. It also might include related legal documents, such as an advance directive regarding medical decisions and a certification of trust, which summarizes important trust terms and information.
President Biden and Chinese leader Xi Jinping held a virtual summit Monday night in an effort to lower tensions that have eroded trust and raised the possibility of conflict between the world’s top two economies.
“None of this is a favor to either of our countries . . . it’s just responsible world leadership,” Biden told Xi in his opening remarks. The Chinese President told Biden that the two sides needed to “manage differences and sensitive issues in a constructive way to prevent Sino-U.S. relations from derailing,” according to Xinhua.
Despite few concrete breakthroughs on key issues such as climate, trade, the pandemic, or arms control, the two leaders did establish a dialogue that can become more constructive, potentially easing tensions. And following the meeting, the U.S. and China also agreed to ease travel and visa restrictions on each others’ journalists, which will allow journalists to enter and depart from both countries more freely. Both countries also pledged to resume issuing new journalist visas, a process largely halted since early 2020.
Xi Jinping also used the virtual summit with U.S. counterpart Joe Biden to warn that encouraging Taiwanese independence would be “playing with fire.” Taiwan has recently evolved into a flashpoint as China increasingly flies fighter jets and bombers into its air defense identification zone, and the U.S. seemingly continues to reaffirm its commitment to supporting the island.
Read more in “Chinese, U.S. Leaders Against ‘New Cold War‘,” by Zhao Minghao, a Research Fellow at the Charhar Institute.
The Beijing Stock Exchange officially launched and opened for trading on Monday with high hopes from Chinese leaders for its domestic economic impact. Trading on the new exchange rallied on its first day, when the first batch of 81 firms started trading, including 10 initial public offerings from tech and manufacturing companies. The new Chinese bourse surged as much as six-fold and triggered circuit breakers, before closing with an average price increase of 200%.
Chinese leaders have been championing the new bourse as a way to drive funding for small and medium-sized enterprises. The exchange will “facilitate innovation-driven development and economic upgrading and transformation,” according to Yi Huiman, chairman of the China Securities Regulatory Commission, speaking at an opening ceremony.
A trust can be a useful estate planning tool, in addition to a will. You can use a trust to remove assets from probate, potentially minimize estate and gift taxes and ensure that assets are managed on behalf of beneficiaries according to your wishes. There are different types of trusts you can establish and some are more specialized than others. Knowing how these broad categories of trusts compare can help with choosing the right option. When it comes to estate planning, including whether to create a trust, a financial advisor can help you make the most informed decision possible.
What Is a Trust?
A trust is a type of legal entity that can be created in accordance with your state laws to manage your assets. The person who creates a trust is called a grantor and they have the right to transfer assets into the trust. They can also choose one or more trustees to oversee the trust and manage the assets within it.
The trustee’s job is to manage assets according to the grantor’s specifications on behalf of one or more trust beneficiaries. For example, you might set up a trust to hold assets that you want to be distributed among your three children when you pass away. Or you might choose your favorite charitable organization to be a beneficiary of your trust.
There are many different kinds of trusts and they can be categorized in different ways. For instance, a revocable trust can be changed during the grantor’s lifetime. If you have this type of trust and you want to add assets to it or change the beneficiaries, you can do so while you’re still living. An irrevocable trust, on the other hand, involves a permanent transfer of assets.
Trusts can also be categorized as grantor or non-grantor. In a grantor trust, the trust creator retains certain powers over the trust, including rights to the trust’s assets and income. Trust assets may be included in the trust creator’s estate when they pass away. With a non-grantor trust the trust creator has no interest or control over trust assets. Trust assets are generally excluded from the trust creator’s estate at their death.
Benefits of Trusts in Estate Planning
Trusts can be used inside an estate plan to perform a number of functions. For example, you might create a trust to:
- Pass on specific assets to your chosen beneficiaries
- Ensure that certain assets aren’t subject to the probate process
- Manage estate and gift tax liability
- Protect assets from creditors
- Ensure that a special needs beneficiary is cared for when you’re gone
- Receive the proceeds of a life insurance policy when you pass away
Some of these scenarios may call for a simple trust, while others may require a more specialized trust. One thing that’s important to keep in mind is how each one is treated for tax purposes when creating a simple vs. complex trust.
Simple Trust Explained
A simple trust is a type of non-grantor trust. To be classified as a simple trust, it must meet certain criteria set by the IRS. Specifically, a simple trust:
- Must distribute income earned on trust assets to beneficiaries annually
- Make no principal distributions
- Make no distributions to charity
With this type of trust, the trust income is considered taxable to the beneficiaries. That’s true even if they don’t withdraw income from the trust. The trust reports income to the IRS annually and it’s allowed to take a deduction for any amounts distributed to beneficiaries. The trust itself is required to pay capital gains tax on earnings.
Complex Trust Explained
A complex trust also has certain criteria it must meet. In order for a trust to be complex, it must do one of the following each year:
- Refrain from distributing all of its income to trust beneficiaries
- Distribute some or all of the principal assets in the trust to beneficiaries
- Make distributions to charitable organizations
Any trust that doesn’t meet the guidelines to qualify as a simple trust is considered to be a complex trust. Complex trusts can take deductions when computing taxable income for the year. This deduction is equal to the amount of any income the trust is required to distribute for the year.
There are also some other rules to keep in mind with complex trusts. First, no principal can be distributed unless all income has been distributed for the year first. Ordinary income takes first place in the distribution line ahead of dividends and dividends have to be distributed ahead of capital gains. Once those conditions are met, then the principal can be distributed. And all distributions have to be equitable for all trust beneficiaries who are receiving them.
Simple vs. Complex Trust: Which Is Better?
When it comes to simple and complex trusts, one isn’t necessarily better than the other. The type of trust that ultimately works best for you can hinge on what you need the trust to do for you.
A simple trust offers the advantage of being fairly straightforward when it comes to how assets and income can be distributed and how those distributions are taxed. A complex trust, on the other hand, could offer more flexibility in terms of estate planning if you have a sizable estate or numerous beneficiaries.
When comparing trust options, consider whether you want to retain control or an interest in the assets that are transferred to it. If you choose a simple or complex trust, you’re choosing a non-grantor trust which means you’ll no longer have an interest in the trust assets. Talking to an estate planning attorney or trust professional can help you decide which type of trust may work best for your financial situation.
The main difference between a simple vs. complex trust lies in how income and assets are distributed and how those distributions are taxed. Whether it makes sense to establish a simple vs. complex trust can depend on the size of your estate, the nature of the assets you want to include and your wishes for managing those assets. It’s important to understand the tax rules before creating either type of trust. And make sure you understand how the trust fits into your larger estate plan.
As much as I like pickled cherry peppers, store-bought ones just don’t cut it for me. They use preservatives and, above all, tend to be way too sweet. What’s the deal with all the sugar? Did someone do a research and establish that sweet pickled cherry peppers taste better? Well, they don’t. A savory taste, with just a touch of sweetness, suits them much better. Pickling these little peppers at home will also save you a ton of money.
You can pickle cherry peppers three ways:
- whole, untouched
- whole, de-veined and de-seeded
- cored, de-veined and de-seeded and cut in halves or quarters
Why does it matter? Here is why:
- Whole and untouched look the best of the three. They take the most space in a jar. And they are the hottest due to preserved membranes and seeds.
- Whole, de-veined and de-seeded are not as spicy. They are lightly spicy, actually. Not much space-saving here, just a tiny bit. They are great for making stuffed pickled cherry peppers. Even a simple stuffing such as plain cream cheese or ricotta cheese will make them taste heavenly. There is something about that balance of fat, acidity, spiciness and a touch of sweetness.
- Halved or quartered cherry peppers will allow you fitting in about twice as many in a jar. They are easier to eat as they are bite-size.
How you pickle your peppers will depend on how you want to use them and whether you want them spicy or mild. Some like them hot, some like them mild. Because of that, I usually do a combination.
This recipe is adapted with a couple of small changes from Chez Panisse Vegetables book. As much as I love the original recipe, I find that using white balsamic vinegar produces much better results. The flavours of the two are very similar, although the dark vinegar is slightly sweeter and tends to be more syrupy. White balsamic vinegar has a cleaner taste, which is the main reason I use it. It’s also aesthetically more pleasing if you want to show off your pickled cherry peppers. The other change I made is to bump black peppercorns from 1/8 teaspoon to one teaspoon of whole ones.
Buying coffee beans from any one of these roasters will be an instant improvement to your morning cup of coffee.
The world of coffee roasting is vast and rich. We’ve come so far from buying freeze-dried coffee granules from plastic jars, with a lot of the general public finally discovering what it means to drink truly great coffee. It’s not just about arabica or robusta anymore — no, we’ve gone down the rabbit hole of coffee beans, learning everything from washed versus natural processing to just how the growing location of the coffee affects what your brew tastes like.
To break down what makes a coffee roaster truly great, we had to come at it from a variety of perspectives. Some are pushing the boundaries with what they’re packing, whether it’s the way they’re roasting, who they’re getting their beans from or how they’re mixing their blends. Some roasters are great because they revolutionized what speciality coffee even is (thanks, George Howell). And sure, some of these roasters are good because of the industry recognition and peer approval. From long-standing coffee roasters to newbies making huge moves, here are the 25 best coffee roasters in America.
Since 2015, a little roaster-cafe hybrid called Abracadabra has been fueling the Woodstock community with magical coffee. Too often, brands hide behind good marketing and branding without paying enough attention to the actual stuff they’re selling — but not Abracadabra. The roaster is super transparent with where it sources its coffee, and it’s for the best for both the coffee farmers and the consumers.
Bird Rock is recognized throughout the coffee world for its high-quality coffee. It was Roast magazine’s roaster of the year in 2012, a Good Food Award recipient in 2017, 2018, 2019 and 2021 and consistently receives 90-plus scores from Coffee Review. Bird Rock’s dedication to its craft extends beyond roasting coffee, with the roaster giving back to the community as well as engaging in direct trade with farmers.
Black and White
You can trust Black and White to make some good coffee. Why? It just so happens to be founded by two US Barista Champions, Kyle Ramage and Lem Butler. Combined, Ramage and Butler have spent decades steeped in the coffee world from buying, roasting and, of course, brewing. While the barrier for entry to become a US Barista Champion seems to be way too high for most, Black and White makes sure that everyone has access to high-quality coffee.
Counter Culture remains a stalwart in the third-wave coffee movement even though it’s been around for over a quarter of a century. With its 26-year history, the roaster continues to grow not just in size but in practice. Counter Culture pushes to be as sustainable as possible, while educating the masses on what it means to be a conscientious roaster and better at-home coffee brewer.
Dragonfly Coffee Roasters
Dragonfly is a coffee roaster that others should aspire to be like. Roast named it the Micro Roaster of the year in 2019, awarding the Boulder-based roaster for its commitment to its employees, community and coffee quality. It was also recognized for bringing recognition to under-represented coffee regions like Yemen and Myanmar. Its dedication to sustainability is also second to none — almost everything is recycled in some form, and even the coffee chaff ends up in the hands of local horticulturalists, who use it as fertilizer.
W e understand that when you are trying to figure out who should represent your case, there is a lot to consider. After all, your representation for your case can make or break the results. We want you to know that our Buffalo lawyers are passionate about helping our community and everyone in it. We have been bringing support for the Buffalo community for over 65 years. These decades have been spent building strong relationship and trust with the people and the businesses here in Buffalo. We care very deeply about your case and you should know you would be in good hands with us.
Along with our Buffalo office, our attorneys Robert Friedman and Mike Ranzenhofer have thirteen New York State offices. We were founded in 1955 in Akron, NY. Helping our community and extending our reach is something we are very proud of.
We can come to you if you need to have a consultation outside of the office. If you are either stuck bedridden at home or are recovering in the hospital, and would like to get started on your case, we can make a house call so to speak. We aim to make this as convenient for you as possible.
We make ourselves very available for your convenience. We are open at our thirteen offices Monday through Saturday, by appointment through the evenings. We understand how overwhelming it can feel to fit in a consultation so we make an effort to accommodate your schedule.
We would love to hear from you about your case. We aim to give you in depth advice during our first consultation. We can help you understand what to expect as far as what you are entitled to or what legal avenues you have and more. We’re sure you have a lot of questions regarding your case and we want you to know that we are here to answer all of them to give you the help you deserve.
We will always treat your case as a priority. We know that you often have one shot at your case and we do not take that for granted. We know how seriously we need to take our job to litigate your case the right way. We encourage you to reach out right away if you are looking for legal representation that is not only attentive to your needs but also effective for your case. We know how to successfully leverage our experience for your benefit. Give us a call today to get started. We want to provide you with a result that is satisfying.
Obtaining United States citizenship through marriage can take several years, but the steps are clearly laid out by United States Citizenship and Immigration Services.
by Michelle Kaminsky, Esq.
updated October 12, 2021 · 3 min read
Naturalization is the process by which a non-citizen becomes the citizen of a country. One way to get citizenship in the United States is to marry a U.S. citizen. However, it’s not as easy as filling out a couple of forms.
It’s not a fast process, and the outcome isn’t guaranteed, and there are lots of requirements to fulfill along the way. With a lot of attention to detail and a little patience, you can attain citizenship in the U.S.
What follows are the basic steps to obtaining U.S. citizenship through marriage, which generally include first becoming a permanent resident (green card holder) and then applying for citizenship.
Establish Permanent Residency
Establishing permanent residency is the first step to acquiring U.S. citizenship by marriage. The Permanent Resident Card, also known as Form I-551 or a “green card,” provides proof that you are a permanent resident of the United States and is granted by U.S. Citizenship and Immigration Services (USCIS).
Immigration Through Marriage to a U.S. Citizen
To enter the U.S. legally if you are married to a U.S citizen, your spouse should complete Form I-130 , Petition for Alien Relative, and all required documentation and filing fee to obtain the proper visa permission to immigrate to the U.S.
Green Card Through Marriage
After your arrival, you should file Form I-485, Application to Register Permanent Residence or Adjust Status, and pay the filing fee to adjust your status to that of a permanent resident in the United States. If you are already in the U.S. legally, you should file both forms at the same time.
The USCIS will call in you and your spouse for an interview, and then, if things go well and if you have been married for less than two years at the time resident status is granted, you will receive permanent resident status on a conditional basis.
This can be removed by submitting a joint petition, Form I-751, Petition to Remove Conditions on Residence, within the 90-day period before the expiration date of conditional residence.
Applying for Citizenship
Now, the big question arises: “When can I apply for U.S. citizenship?”
The general answer is that you must be a permanent resident (green card holder) for at least three years and have been living in marital union with your U.S. citizen-spouse during that time. You need to file citizenship Form N-400, Application for Naturalization, along with requested documentation and appropriate fee in order to apply for citizenship.
There are some further eligibility requirements under Section 319(a) of the Immigration and National Act (INA), however, and, they include the following:
- Be 18 or older
- Have lived within the state or USCIS district with jurisdiction over your place of residence for at least three months prior to filing of application
- Reside continuously within the U.S. from the date of your naturalization application until the time of naturalization
- Be physically present in the U.S. for at least 18 months out of the 3 years immediately preceding the filing of your application
- Be able to read, write, and speak English and have knowledge and an understanding of U.S. history and government
- Be a person of good moral character, attached to the principles of the U.S. Constitution, and “well disposed to the good order and happiness of the United States during all relevant periods under the law.”
How long it will take your application to make it through the naturalization process depends largely on where you’re located. The USCIS Local Field Office closest to you will contact you for an interview and final review of your application. You can check processing times at the USCIS website. If you are approved, you will take the oath of allegiance—in some locations even the same day.
Final Considerations on Getting U.S. Citizenship Through Marriage
Remember that the final authority regarding all immigration and citizenship issues lies with the USCIS, so be sure to consult the USCIS website for further information, especially the USCIS Policy Manual Citizenship and Naturalization Guidance.
Moreover, if you have any issues that make your immigration and citizenship situation anything less than run-of-the-mill, you should seek out the advice of an immigration attorney.
, or “current owner”: This is the property owner who initiates the creation of the deed and who must agree to the ultimate transfer of the property. , or “new owner:” Whoever owns the life estate is the “life tenant.” It may or may not be the same person as the grantor. , or “future owner:” This is the person or people who will be given the property in question after the owner dies. The future owner may also be referred to as “the remainderman.”
It’s important to remember that although some of these terms, such as “remainderman,” sound singular, they are gender neutral and may refer to multiple people. For example, if the grantor/life tenant is leaving a certain property to both male as well as female children, there may be more than one “remaindermen.”
How Life Estate Deeds Differ From Other Property Transfer Processes
Most are familiar with the traditional form of leaving property to descendants in a will which goes into effect after a person has died. In a life estate deed, however, the grantor and the remainder beneficiary are viewed as co-owners of the property.
However, it’s not a co-ownership the way we normally understand it, with two people having the right to live and work on a property at the same time. In a life estate deed, the future owner is just that—the future, not current, owner of the property. He or she (or they) do not have any legal rights to possess the property.
You may have seen “reverse mortgages” advertised on daytime television. Life estate deeds are similar, except the property is transferred all at once to the beneficiaries, and money is not usually exchanged. Even though the property is co-owned by the remainderman, he or she may live there, but may not sue to establish a right to do so.
Since the grantor is living on the property, he or she is responsible for its upkeep. While he or she legally may not be removed from the property, he or she must still pay the mortgage in full. Any repairs to the property are still the responsibility of the original homeowner. Perhaps most importantly, the life tenant must continue to maintain home insurance and property taxes as if he or she still owns the property outright.
As you might imagine, life estate deeds are most popular for multi-generational families rather than in business dealings. Many families approach this issue of “shared ownership” differently, depending on the condition of the property, the financial stability of each party involved, and the state of the relationship between the current owner and the future owner.