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Revocable Trusts (Living Trusts) in Johnson County (Overland Park, Leawood, Lenexa, Olathe), KS
Revocable Living Trust – What is a living trust?
Of course, the BEST thing about a trust is that you avoid probate – more on that in a minute.
A Revocable Trust is also called a Living Trust or even a Loving Trust. The Trust has three separate parties to it:
The Settlor– Also called grantor or trustor, this is the individual that the Trust is about. It’s this person that puts their assets into the trust. This doesn’t just have to be a single person, many times a trust is created on behalf of multiple people (think husband and wife).
The Trustee– This is the person who holds title to the property. They have a duty to manage the property (called a fiduciary duty) of the trust. In a normal Revocable Trust situation, the Grantor (or Settlor/Trustor) is also the trustee during his/her life. Upon their death, the trustee is the person that the Grantor names in the Trust.
The Recipient– The beneficiary is the person that gets the assets from the Trust. This can be the Grantor’s children, spouse or even a charity. You can even name someone else entirely. Trusts are very flexible documents.
A couple of key points: a Trust is considered revocable only during the lifetime of the Grantor. When they die, neither their spouse, beneficiaries nor trustee can amend the trust (exception: the court can always amend the trust). Second, it’s only a “Living Trust” during the Grantor’s lifetime
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An good estate planning attorney is the type of lawyer that, after years of going through law school and being mentored under several other good attorneys, understands the proper way to counsel clients on the ins and outs with regard to a plan. However, any attorney can make a plan. But a good attorney is one that knows how to listen to your needs and then craft a plan that works within those boundaries – one that is flexible enough to meet your needs both now and in the future.
Revocable Trust – How do you Create One?
But a Trust is ineffective if it is simply a legal agreement. The Trust must have property put into it (called “funding”). This is where you title your home and bank accounts into the Trust, such as The Mike and Mary Jones Revocable Trust dated January 1, 2014.
Revocable Trust – What about a Will?
This actually comes into play more often than you would think. The cases that we normally see this is where the Grantor has an automobile accident or some sort of physical problem during their lifetime. Then it’s discovered that they purchased a piece of property that didn’t make it into the trust. If there wasn’t a will, then these assets would have to be probated, which would defeat much of the benefits of having a trust. Or worse still, the beneficiaries would argue over who was to receive the new assets.
Further, in a will you can nominate a guardian for your children.
Revocable Trusts – What are Some of the Benefits?
In addition to the cost savings, there are also privacy benefits to having a Trust. The assets within the Trust do not have to be disclosed to the public upon death. This is completely different than a will, in which case all of the assets are publicly disclosed.
There is also a benefit in speed. The property that consists of making up the trust can be quickly distributed to the proper recipient after the Grantor’s death, which is a significant benefit as compared to the time delays caused by the probate process.
Further, along with the avoidance of probate in Kansas, “supplementary” probate management in various other states where property is owned could be avoided by transferring the out-of-state property to a revocable living trust. If you own real property (like a vacation home, or oil and gas well interests), this can be a significant advantage.
Finally, you can provide the Trustee with how you want the property to be run. In case of a family business, you don’t have to sell right away. Instead, the Trustee can work with the beneficiaries to maximize value before transferring the business to your heirs/beneficiaries.
Trustee – Who can be the Trustee?
Also, you can name a Trustee while you are still alive. This is very helpful if you were to become physically or mentally incapacitated (think heart attack). You don’t have to go to court to do this.
You can even name more than a single trustee. Many times, we see a surviving spouse name their children as co-trustees upon their death. We do pay special attention to make sure that their duties are spelled out (who can pay debts individually versus all together).
What about Taxes?
But once the Trust becomes irrevocable, then it must file a tax return. Properly planned, there is little to no income taxes that should be paid as part of a Trust becoming irrevocable.
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A will is a legal document that states who gets your assets when you die, as well as state who gets to take care of your minor children after your death. A will in Kansas requires witnessed, and it is good practice to also get it notarized. A will, however, is not valid until it is probated by the court.
Living Trusts – Can I change it?
Make an application for Letters Testamentary if there is a will admitted (or secure Letters of Representation without a will).
Post notification to the creditors of the deceased. The first date that the newspaper has the publication in its starts the time period for creditors to submit their cases to the court and the personal rep.
Find and appraise the assets of the deceased.
Conduct the estate and sell any property if funds are required to pay costs.
Pay debts, taxes, creditor claims, and expenses.
Prepare a list showing earnings and disbursements.
Get court approval for distribution and close estate.
Revocable Trust – Does it help you avoid Probate and the costs of Probate?
Revocable Living Trusts – What are some of the Disadvantages?
Diligence. Having a Trust is an ongoing commitment. You need to monitor the trust to make sure that assets are properly titled and any new assets titled in that name instead of your personal name. Bank accounts are usually the biggest problems and banks seem to have a hard time grasping the concept of a Trust and always want to title the accounts in your personal name.
Tax Rules. What? I thought that Trusts were made for taxes. Well, they are. But you do lose a bit of flexibility as the tax year for a trust is the calendar year while a probate estate has the option of using a fiscal year.
What about a Power of Attorney or Living Will?
A Living Will (or Advance Directive) is also drafted as part of our standard package. However, we point out the pros and cons of this document. In general, we recommend that it be used for those with failing health, but not for younger people. In general, this is something to discuss with your attorney.
We are a group of lawyers dedicated to providing you with the best estate plan. We serve in the greater Shawnee Mission area (Mission, KS and Shawnee, KS, etc.). We are Johnson County, KS estate planning attorneys.
Shawnee and Mission are cities located in Johnson County, KS. Our estate planning lawyers in Johnson County, KS serve all cities in the area.
Please call us for a personalized plan for your estate today.