Living wills and trusts: Here’s what you need to know

living will

Estate planning isn’t the most exciting thing to do, but it’s one of the most important–both for yourself and your family. If you have minor children and some assets, you probably need an estate plan regardless of your tax situation.

Why you need a will or living trust
If you die without a will (intestate), the laws of the state in which you live will determine the fate of your minor children and your assets. That’s a concerning thought for most people. To avoid this, you need a written will to make your wishes known.

The main purposes of a will are to name a guardian for your minor children (if any), name an executor for your estate, and specify which beneficiaries (including charities) should get which of your assets.

The guardian’s job is to take care of your kids until they reach adulthood (age 18 or 21 in most states). The executor’s job is to pay your estate’s bills, pay any taxes due, and deliver what’s left to your intended heirs and charitable beneficiaries.

The living trust
In addition to a will, you may also want to set up a living trust to avoid probate. Probate is a court-supervised legal process intended to make sure a deceased person’s assets are properly distributed. But going through probate typically means red tape, legal fees, and your financial affairs becoming public information. That’s where a living trust comes in.

Here’s how it works: You establish the living trust and transfer legal ownership of assets for which you wish to avoid probate (such as your main home, a vacation property, investment accounts, cars, etc.) to the trust.

In the trust document, you name a trustee to be in charge of the trust’s assets after you die, and you specify which beneficiaries will get which assets from the trust.

Because a living trust is revocable, you can change its terms at any time, or even unwind it completely, as long as you’re alive and legally competent.

For federal income tax purposes, the existence of the living trust is completely ignored while you’re alive. For state law purposes, however, the living trust is not ignored. When prepared properly, it avoids probate.

Choosing your beneficiaries
One last, important point — your will and/or living trust should be compatible with your beneficiary designations and the manner in which your assets are legally owned. For example, when you fill out forms to designate beneficiaries for your retirement and investment accounts, the named beneficiaries will automatically cash in upon your death without going through probate. The same is true for bank accounts if you name payable-on-death (POD) beneficiaries. Your will or living trust document will not overrule those designations, so keep your beneficiary designations current to make sure the money is distributed as you intended.

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