Will Your Will Avoid Probate? by Lee R. Phillips

The words "living will trust" are not really good legal terminology. But, it is a term that is often used when people start looking into living trusts. Distribution of property at someone’s death is generally understood as the primary purpose of a will. People think a trust does the same thing as a will, which may cause some confusion.

Wills and living trusts have related, but different legal concepts and documents. In many respects, a living trust can serve many of the same purposes as a standard will. So, when someone asks me for a "living trust will", I’m not sure what they really want. A will and a living trust are two very different legal documents. Living trusts always have a "pour over will," a specific type of will, associated with them. Using a pour over will is a safety device implemented with living trusts.

There are different terms for living trusts—"living revocable trust" or "revocable living trusts." The term " revocable" is important because the trusts can always be revoked. That means that the maker of the trust can revoke the trust and move everything back to status quo anytime he or she wants. Living trusts are used to avoid probate which will give their heirs a larger inheritance and prevent them from having to pay estate taxes. In order to prevent a probate proceeding, a trust must be correctly set up and managed.

The majority of the people who set up a living trust do not avoid probate. Some in the legal community are coming out in opposition to living trusts since so many clients are not really getting the probate protection they thought they were getting. The dilemma is not caused by the trust. It’s the attorneys who are failing to educate their clients. In order to avoid probate, clients need to be educated on how to "use " their living trust.

When the living trust fails to protect the family against probate, the deceased’s assets need to be probated. There is no other option than going to the probate court for a prolonged legal proceeding. If the deceased had a will, then the probate court will use the will to guide the probate process. When there is no will, it becomes what is called an "intestate" proceeding. Dying without a will is dying " intestate."

A living revocable trust should be implemented with a pour over will. When there is a pour over will and if for some reason the assets need to be probated, the probate courts will look to the pour over will to help with the probate process. If all goes well, nothing will need to be probated and the pour over will won’t be used.

Pour over wills don’t make a distribution of the property, as standard wills do. Once the property is probated, a pour over will directs the court to "pour over" all of the property into the revocable living trust, so that it can be distributed according to the terms of the living trust. Lee R. Phillips’ new book, Guaranteed Millionaire discusses revocable living trusts and pour over wills in detail. When you order Guaranteed Millionaire, you will receive absolutely FREE the DVD, "Using the Law to Make Money and Protect Your Assets." Orders placed by the end of the month will get $5 off the purchase price.