Throughout your lifetime you will likely need the assistance of several different types of lawyers. The key to getting the most out of legal advice is going to the right type of lawyer for that advice. Just as you would not consult a pediatrician if you were having chest pains, you should not go to a criminal defense lawyer if you need advice on estate planning. At some point, you may find that you need advice and/or assistance from a living trust lawyer. Knowing what type of legal matters a living trust lawyer handles will help you to recognize when you need one.
Trust Basics
Although most people continue to use a Last Will and Testament as their primary estate planning document, more and more people are turning to a trust agreement in lieu of, or in addition to, a Will to distribute their estate assets after death. A trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a Settlor, who transfers property to a Trustee. The Trustee holds that property for the trust’s beneficiaries. When used to distribute an estate, the trust property can be distributed to the beneficiaries immediately after the death of the Settlor or in staggered disbursements over a period of time. Trusts can also be used for a wide variety of other purposes within an estate plan, including:
- Incapacity planning
- Asset protection
- Pet planning
- Charitable gifting
- Medicaid planning
- Special needs planning
Testamentary vs. Living Trusts
All trusts can be divided into two categories – testamentary and living (formally referred to as “inter vivos”) trusts. A testamentary trust is a trust that does not activate until the death of the Settlor. A living trust, as the name implies, is a trust that activates as soon as all formalities of creation are complete. Living trusts can be further divided into revocable and irrevocable living trusts. A revocable living trust can be modified, amended, or revoked by the Settlor of the trust at any time and for any reason – or for no reason at all. An irrevocable living trust, on the other hand, cannot be modified, amended, or revoked by the Settlor at any time nor for any reason. Because a testamentary trust is typically triggered by a provision in the Settlor’s Will, a testamentary trust is always revocable until the death of the Settlor, at which point it becomes irrevocable.
Reasons You Might Need a Living Trust Lawyer to Help You
There may come a time when you are faced with the need for the assistance of a living trust lawyer. Some common examples of reasons why you might need a living trust lawyer’s advice and/or assistance include:
- Deciding what type of trust you need. People often choose the wrong type of trust for their trust purpose. This is particularly likely to happen if you try to go the “Do It Yourself (DIY)” route.
- Creating a living trust. Again, using a DIY trust agreement you found online is one way to increase the likelihood that your trust will fail. Conversely, the best way to ensure that your trust will succeed is to work closely with an experienced living trust lawyer during the creation of the trust agreement.
- Administering a living trust. If you were appointed to be the Trustee of a living trust it is in your best interest, and the best interest of the trust purpose, to retain the services of an experienced living trust lawyer to help you administer the trust.
- Contesting a living trust. You have likely heard of a Will contest, but did you know that you can also challenge a trust agreement? The concept and procedure is essentially the same. If you believe that the trust agreement is invalid for any of the grounds available under the law, such as the Settlor was not of sound mind when he/she executed the agreement, you can contest the trust agreement. Because contesting a trust can be a complicated legal process you should consult with an experienced living trust lawyer before deciding how to proceed.
Contact Us
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding living trusts, contact the experienced Missouri living trust lawyers at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.
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