Will Substitutes

Note: In all cases, when implementing WILL SUBSTITUTES in an estate plan, legal advice is a must!


Despite what you may have read or heard, a living trust can’t always fully replace a Will. Neither is trying to place all of your property in joint ownership with your spouse an effective replacement for a Will. You’ll find it difficult to transfer all of your property to a trust or title all of your property in both your and your spouse’s names. Any property you miss will be distributed under state intestacy law if you die without a Will.

However, living trusts and joint ownership each have a place in many estate plans, for several reasons. One popular reason is to avoid probate. Probate is the court-supervised process of proving and administering a Will. This process is often time consuming and can be expensive, depending on the size and complexity of your estate. Probate also exposes your assets to public scrutiny. When your Will is probated, its terms generally become public record.

Living Trusts

A living trust is probably the best strategy to avoid probate and protect your financial privacy. A living trust is a legal agreement under which you transfer assets to the trust to be managed by a trustee for the benefit of one or more people, generally you and your spouse. The trustee is responsible for administering the trust and managing the trust assets. You can serve as your own trustee during your lifetime or you may want to choose another person or organization to serve as your trustee.

A living trust can hold all types of assets — from your investment portfolio to collectibles to your closely held business. Unlike your Will, a living trust is not a matter of public record. If your trust agreement provides for your trust to continue after your death, the assets in the trust at your death will escape probate and any ensuing publicity.


Pour Over Provisions

Living trusts have other estate-planning advantages, as well. You can use a living trust to unify your estate’s assets under one manager and provide continuing asset management for your family and other heirs after you’re gone. How? In your Will, you can direct that any assets not held in your living trust be “poured over” to the trust at your death to be managed along with the other trust assets. Be aware, though, that the assets placed in the trust at your death will be subject to probate.

Joint Ownership

Property you and your spouse own jointly with rights of survivorship will pass privately to your spouse outside of probate at your death. Using joint ownership for the family home and a modest bank account or investment portfolio is a simple way to help your family’s lives go on as normally as possible while your estate is being settled. Be aware, though, that using joint ownership precludes the use of other estate-planning techniques that may help to save estate taxes and may have other ramifications for your estate plan.


Community Property

Community property doesn’t pass automatically to your spouse. If your state has a community property law, you and your spouse each own a one-half interest in assets acquired during your marriage. So, when one spouse dies, the survivor continues owning half of the assets. The deceased spouse needs a Will to transfer the other half. Also, during your marriage, you may have acquired assets that you own separately — gifts and inheritances. You need a Will to determine what will happen to this non-community property.


Beneficiary Designations

You may have significant assets that can pass outside of probate by beneficiary designation rather than by Will. Life insurance proceeds, qualified retirement plan benefits, annuities, and Individual Retirement Accounts can go directly to beneficiaries instead of through probate. Check to make sure you’ve designated beneficiaries and secondary beneficiaries.

NEXT Federal Estate Tax

Related:

	Estate Planning Needs
	BUILDING AND CONSERVING YOUR ESTATE
	Using "Will Substitutes" To Avoid Probate
	Federal Estate Tax
	Estate Planning Strategies

	Wills, Trusts, Probate, and You HERE!
	Living Wills HERE!
	Living Trusts HERE!
	Estate Planning Trusts HERE!
	1035 Life Insurance Exchange
	Revocable Trusts HERE!

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