Living trusts have become popular in Georgia in the last several years as an estate planning alternative to conventional wills. They are frequently touted as a way to avoid the Georgia probate courts, which are sometimes criticized as expensive and slow to resolve estates. While I believe the probate process doesn’t have to be those things, I am also happy to set up living trusts when they make sense for my clients.
Unlike a will, a living trust isn’t a legal document in which you simply write down your wishes. A trust is a legal structure like a corporation or a partnership. After you create it, you can transfer your assets — your home, bank accounts and other property — into the trust and then specify who is to receive them after you die. This legal trick allows you to take all of your assets out of your own name while keeping them under your control. Because probate only applies to property held in your own name, you can avoid a probate case in this way.
People who set up living trusts generally name themselves as the sole trustee in charge of the trust, or name their spouses as co-trustees, although they can name any adult. Trustees have the legal right to manage and control the trust’s assets, so it’s important to name trustworthy people. You can also name a person or institution as a successor trustee to manage the trust if you are incapacitated.
That last point is another advantage of a living trust. Even if you are not dead, if you’re too sick or disabled to handle your own financial affairs, the successor trustee can take over for you. In this way, you can also avoid a guardianship or conservatorship, which is a court-ordered financial power of someone who can no longer manage his or her own money. This proceeding can be brought without your consent and result in control being given to someone you don’t choose, so advance planning is very important for people concerned about controlling their own assets.
Living trusts aren’t right for everyone. For people without significant property or any children, they may not be worth the expense. And if you anticipate conflict among your heirs over your estate, you may be better off with the court supervision of a probate case. However, The Libby Law Firm, is happy to discuss setting up a living trust or other estate planning options with any client. To speak with our Atlanta estate planning attorneys, you can call (404) 467-8611 or, send us a message through our confidential online contact form.