What is a living trust?
A trust is a private agreement and pre-arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. Commonly referred to as a revocable living trust. You can be the first trustee of your own revocable living trust, keeping full control over all property held in trust while you are competent and of sound mind. An attorney that is experienced in estate planning and elder law can help you and your family make the proper decisions on how to protect all of your families liquid and real assets. Our attorneys are not only trained in handling simple estate will probate matters, we take care of complex living trust estate litigation in the event of a contest or fraud in Nassau County, Suffolk County, Queens County, Bronx, Westchester, Richmond County, Manhattan and Brooklyn Kings County New York.
A “living trust” (also referred to as an “inter vivos” trust) is simply a trust that you create while you’re alive, rather than one that is created after the time of your death.
There are different types of living trusts available that can help you avoid probate, reduce estate taxes, get in home care free, (the law offices of Castiglia-Rubinstein and Associates can help you and your family apply for Medicaid in any of the 50 States throughout the United States; see Medicaid Asset Protection. Medicaid is a federal program available nationwide throughout the United States) paid through your state by Medicaid or set up long-term property management for your real estate assets. For details on creating any type of living trust agreement, contact the law office of Castiglia-Rubinstein and Associates.
For most people, a will is the first choice of passing on assets and your estate to heirs. But it’s not the only choice. Among other estate planning tools, the revocable living trust is gaining in popularity, especially amongst wiser and more savvy boomers. There are many benefits of living trusts versus a will; see Wills vs Living Trusts.
In addition to being one of several ways to avoid probate with a living trust the legal process to probate a will and determine whether a will is valid is very costly; see avoiding probate. Living trusts offer many benefits during life and have many advantages after death) and after death become irrevocable so there can be no further changes made.
Trust vs Wills * Removal of a Trustee * Guardianship * Probate * Beneficiary Rights
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts
In Home Care * Supplemental Needs Trusts * Fraudulent Transfers
How a revocable living trust can protect your family depends on your families specific circumstances. The Law Office of Castiglia Rubinstein and Associates can help you and your family with any type of estate and living trust elder law planning and protection; from simple wills and living trusts to more complex living trust estate litigation and in the unfortunate event of a will or living trust contest or fraud in Nassau County, Suffolk County, Queens County, Bronx, Westchester, Richmond County, Manhattan and Brooklyn Kings County New York. Consultation with a qualified attorney and a personal financial adviser should always be part of your estate planning, but here are many things you should know about living trusts:
What is a revocable living trust?
A revocable living trust is a written agreement designating someone to be responsible for managing your property, this is called a living trust because it’s established while you’re alive. It’s “revocable” because, as long as you are mentally competent, you can change or dissolve the trust at any time at your own discretion for any reason. Typically, a living trust becomes irrevocable (cannot be changed) when you die.
A trust involves three parties: you as the creator, the trustee or trustees who agree to manage your assets as directed by the terms of the living trust, and the beneficiaries listed in the living trust agreement.
You will probably want to name yourself and your spouse as the first successor trustees, because you want full control of the real property and liquid assets of the living trust while you’re alive. As the first successor trustee, you will have the power to control all of your assets while you are alive and competent. As first successor trustee you have the power to sell them, exchange them, invest them, or do whatever you desire with any and all of your assets.
What is the difference between a living trust and a will?
Both a will and a living trust contain your inheritance instructions, meaning who gets what, when they get it, and how.
A trust is often preferred for people concerned with privacy and avoiding probate. A living trust will not become part of the public record unless a trustee or a beneficiary demands court approval of accounts. In the case of a Will, a will is filed in surrogates court allowing all probate records to always be open to the general public, see Trusts vs Wills.
If you have more than $25,000 as your net worth and you own your own home, condo or co-op a living trust will make sense. For some people with assets less than $25,000 and that do not own their own home, condo or co-op just a simple will can make more sense. Generally a will is less complicated and less expensive than a trust. If you plan on only using a will or you just have a will in place it also will make sense to get some of the ancillary documents found inside of our estate planning living trust agreements like:
- A Durable Power of Attorney
- A Living Will
- A Durable Power of Attorney for your Health Care Proxy
What if I don’t have either one?
If you don’t leave valid instructions about your estate, like a Will or a Living Trust, your property will first go to probate and then the courts generally decide what goes to your spouse or to your closest heirs equally, which may not be what you want to do. Also, the state could assign someone you wouldn’t trust to manage the distribution of your property or become the legal guardian of your minor children, see guardian ad litem.
What can a revocable living trust do for you, and what can’t it do?
A living trust can provide you with the peace of mind that comes from knowing that your assets and your heirs will be protected in the event that you unexpectedly become unable to handle your own financial affairs. It eliminates the need for your estate to pass through probate court before it can be passed on to your heirs. Properly funded and through the correct wording a trust can also be used as a substitute for powers of attorney.
Your trust can be written in a way that will pass your assets on to your beneficiaries immediately upon your death, or you can designate that they be portioned out over time and in the exact amounts that you specify. The attorneys at the law offices of Castiglia-Rubinstein Associates can help by including tax saving estate and elder law planning and consider the use of clauses that may help to reduce state and federal estate taxes.
Who are the trustees?
Any mentally competent adult may be named as your successor trustee. Typically, you will name yourself and your spouse as first trustees because you want full control of all of your assets while you’re still alive and competent. If you become too ill or disabled to manage your assets, your co-trustee or successor trustee will manage your assets and affairs for you.
It is common that you would name your children as your successor trustees, however, if you’re not confident that one child or any of your children would not distribute the assets according to your instructions, you should name someone that that you can trust as your successor trustee. This could be any person in your life that you can trust or in the case of not having a trusted family member or friend then the trust department of a bank, a professional trust company or a private fiduciary would be the wise choice of appointing as successor trustee.
Will a living trust require a lot of additional work and cost if I add or delete property or investments?
No, you do not have to see your lawyer when your assets change, a simple phone call will do. But you should consult with the law office of Castiglia-Rubinstein and Associates with any significant change in assets or health. For the best advice as to how to deal with your new and current situation call the law offices of Castiglia-Rubinstein and Associates today.
Wills vs. Living Trusts
Although you are better off having a will than having nothing at all; a will is not enough. The cost of probate with a will can take a large portion of liquid cash from your heir’s inheritance. A properly funded living trust can avoid probate in its entirety. Consider sitting and reviewing your estate plan with an attorney that focuses in the area of estate planning and elder law; like the attorneys at the law offices of Castiglia-Rubinstein and Associates.
Name beneficiaries for property. The main function of both a wills and a living trust is to name beneficiaries for your property. In a will, you simply describe the property and list who should get it. By utilizing a trust, you must do that and also “transfer” the property into the trust. (See “Transfer of property into the trust,” below, and also “wills vs trusts“.) Any property transferred into a trust avoids the hassle and expensive costs of probate.
Because all property passing through a living trust does not have to go through probate, it can be distributed to beneficiaries after the death of the grantor, without any fees or interference (or guidance) from the court. For this reason, many people chose to create a living trust instead of will.
Speak with one of the attorneys at the law offices of Castiglia-Rubinstein today for your elder law and estate plan for your will or living trust. Call an estate planning lawyer today at 631-465-0444.
- Avoiding a conservatorship. In a living trust, you can name your spouse, partner, child, or other trusted person to have authority over trust property if you become incapacitated and unable to manage your own affairs. You cannot do this with a will, however you can also make a durable power of attorney to appoint someone to manage your finances. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about the Other Advantages of Living Trusts.
- Protection from court challenges. Court challenges to living trusts are rare. But if there is a lawsuit, it’s generally considered more difficult to successfully attack a living trust than a will because wills are easily challenged in the court of law. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about the Other Advantages of Living Trusts.
- Revise your document. both revocable living trusts and wills allow you to revise your document when your circumstances or wishes change. The decisions you make in these documents are not set in stone until you die.
(On the other hand, irrevocable living trusts cannot be changed after they are finalized. These are usually used by the wealthy to shelter money from taxes and are much more complicated than the revocable type. See a lawyer at the law office of Castiglia-Rubinstein & Associates if you want to make an irrevocable living trust.)
- Privacy after death. After death, a will becomes a public document filed in segregates court for the world to see. A living trust does not, a living trust stays private, so many people choose to use a living trust to keep their affairs private. Speak with one of the attorneys at the law offices of Castiglia-Rubinstein & Associates to find out more about Is a Living Trust Public or a Private Estate Planning Vehicle?
- Notary public. Unlike wills, living trusts must be signed and stamped by a notary public and in the state of New York should be executed in front of an attorney. See “Witnesses,” below to learn the steps required to finalize a will.
- Transfer of property into the trust. To leave property through a living trust, you must transfer the property into the trust. For many items, this is as easy as making a list of the property and attaching to the trust document. However, items with title documents, such as real estate, must be re-titled so that the owner of the property is the trust. This is not usually complicated or particularly difficult, but it is an extra step that you must take. No transfer of property is required when using a will.
- Guardians for children. In a will, you can name guardians to care for minor children. You can also do this in a living trust with a proper Pour Over Will and appointing a proper Guardian. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about how to protect Your Children in the event of your untimely death.
- Property managers for children’s property. In a will, you can name someone to manage any property left to or earned by your children. You can also do this in a living trust with appointing a proper Guardian and trustee.
- Naming an executor. You can use your will to name an executor who will be in charge of wrapping up your estate after you die. That person will be responsible for communicating with the court, paying your bills, and, eventually, distributing any property that goes through probate. In a living trust you name a trustee and an executor of your living will. In a living trust, you name a successor trustee who will manage any of the property left through the trust.
- Ease of creating the document. Wills are simple documents that require no special language. They must be witnessed by two people and signed by the will maker. Similarly, there are no laws that require living trust to be complicated. However, because a living trust document must cover the trustee’s duties, they tend to be more complex. Also, instead of witnesses, you must have a notary public sign the document and in the state of New York a trust should be witnessed in front of an attorney. Finally, trusts are more involved to make because they avoid probate and they require that you transfer property into the trust, see “Transferring property into the trust,” above.
- Requires witnesses. Wills must be witnessed by two people who will not receive anything under the will. Including a self-proving affidavit with your will may make it easier to get through probate, and those must be notarized. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about how the Executing of a Will works.
Do I need an attorney to prepare a living trust?
Yes, you need an attorney that is trained in elder law and estate planning. You and your heirs will suffer from poorly drafted or self made trusts, like many do it yourself trusts available over the internet. You would not want to be your own doctor either by trying to perform open heart surgery or brain surgery on yourself; It follows suit that you shouldn’t want to be your own lawyer either.
Be cautious about using generic or online living trust kits that claim to be customized documents prepared by an attorney.
Leave final wishes. It is permissible to leave funeral instructions and other final wishes in your will or living trust estate plan.
Leave passwords for online accounts. After you die, your executor will appreciate being able to access your online accounts, computers and other devices. However, do not leave this information in your will or living trust. Instead, create a separate document and keep it in a secure place with your other estate planning documents. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about how to protect and leave heirs Access to Online Accounts.
Do I Need a Will or a Living Trust?
Most people need a will, but if you have assets that are greater than $ 25,000 and you own a home or you own property, stocks, bonds, an IRA or 401k then you need a living trust to avoid probate. You may also need to speak with an estate planning attorney to help you protect your assets from estate taxes, probate and you may also want to look into Medicaid Planning or getting help applying for Medicaid at this time. One of our attorney can help guide you and your family with the Medicaid Application process for in home care or chronic care. Speak with one of the attorneys at the elder law and estate planning law offices of Castiglia-Rubinstein & Associates to find out about the different reasons, “why you may need a living trust” to protect you, your family and your assets during your life and after your untimely death.
What If I Don’t Have either a Will or Living Trust?
If you have not already made a will or a living trust, your assets will go to probate and your property will be distributed according to the laws of your state. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about the “Intestate Succession” laws in the state of New York.
Castiglia-Rubinstein and Associates devotes a significant part of their firm to the area of estate planning and elder law. We provide a wide range of estate planning and elder law services through the comprehensive design of one’s estate plan through the use of wills, revocable living trusts, life insurance trusts, family limited partnerships, pooled trusts, charitable planning, and other advanced wealth strategies.
- Comprehensive Estate Planning
- Living Trusts
- Life Insurance Trusts (ILT’s)
- Family Limited Partnerships (FLP)
- Charitable Planning
- Estate and Gift Tax Planning
- Estate Transfer and Heir Planning
- Reducing Federal Estate Taxes
- Medicaid Planning
- Medicaid Applications
- Special Needs Children (Special Needs Trusts)
- Education Trust
- Legacy Planning
- Financial Planning & Estate Planning
Elder Law and Medicaid Planning
Proper elder law and estate planning for Medicaid is a significant part of any well rounded estate plan. It is estimated that 6 out of every 10 people will need to reside in a nursing home in their senior years. The cost of full time nursing home residence in a New York City nursing home is approximately $10,000 to $14,000.00 per month. For many families this expense will wipe out a lifetime of savings very quickly. With proper planning, you can ensure that:
- Your assets will pass to their loved-ones pursuant to the client’s goals.
- You can retain significant control of your assets while you still can manage them.
- You can qualify for Medicaid coverage when it is needed; with a proper estate plan. Our attorneys will help you and your family with Medicaid applications and Medicaid planning.
We are dedicated to your success so contact us. Speak with one of our knowledgeable Long Island will and estate litigation, living trust, elder law and estate litigation attorneys today from wherever you are in New York in Nassau and Suffolk, Brooklyn, Kings and Queens Counties, on Long Island and all New York City boroughs including Bronx, Westchester, Richmond County, and Manhattan.
Call 1-800-960-1529 today.
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Be prepared today, if you or a loved one is going into a nursing home, or already resides in a nursing home, or needs in home care immediately. Speak with one of the elder law and estate planning attorneys at the law offices of Castiglia-Rubinstein & Associates.
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