There is some confusion associated with the terms Living Will and Living Trust. Are they the same type of thing? Not at all. To help you avoid this confusion let me give you a short description of each.
A living will is a written instrument which expresses your desires in regard to medical attention. In the living will you state you intention not to be attached to or kept on artificial life prolonging measures or be given extreme medical procedures in the event that you are either terminally ill or when there is no prospect for your recovery from a serious illness.
Most people sign a living will when they want to avoid being kept alive by technology to maintain a vegetative state or to prolong the dying process. So a living will governs your health care or medical needs. It has nothing to do with your home, your possessions or your financial assets.

A living trust on the other hand, has nothing to do with your health care or medical needs. It has everything to do with your home, your possessions, and your financial assets.
A living trust is a written document which governs how your home, your possessions, and your financial assets will be managed during your lifetime. And it describes how your several assets will be used or distributed in the event or your incapacity or upon your death.
Because your home, your possessions, and your financial assets will be titled in your trust’s name, there will be nothing in your name to require court interference should you die or become incapable of managing your own affairs.
The trust has three parties. The Settlor (or Grantor) is the person setting up the trust. The trustee is the manager of all the trust assets. The beneficiary is the person or persons who have the benefits of the trust assets while they are in trust.
If you set up a trust for yourself, you can be all three parties. You will be the Settlor, you may still manage the trust assets as the trustee. And you can be the lifetime beneficiary.
Your written trust agreement also names someone to replace you if you can no longer act as trustee. This person is called a successor trustee. You are the lifetime beneficiary, but you name others to become beneficiaries upon your death. The trust avoids a probate at the time of your death because there is nothing in your name. It’s all in your trust. The terms of the written trust agreement specify how your estate will be distributed.
For the same reason, your trust also avoids the need for a court conservator to be appointed in the event of your incapacity. The terms of your trust will govern in all matters consistent with its terms and without judicial interference.
Just think, all your instructions can be followed without the need for judges, lawyers, and nosey relatives. Don’t you think you should have a living trust? And also a living will?

A common comment that I hear is something like this: “But I don’t have to worry about probate, I have my own will.”

That’s a common misconception. But by their very nature a will has no legal effect until the death of the person who’s will it is. And for that reason, to give the will it’s authority, or to carry out the terms of a will, it must be supervised by a Court of Law. That means probate. The probate court grants the authority for the terms of a will to be complied with.

Most people, when they learn about probate, and what it is, want to avoid it in their own case. Probate ties up the estate for a period of about 1 to 2 years. Or eleven years in Howard Hughes’ case.

Probate costs an average of 5 to 10% of the value of the estate assets in court costs and attorney fees.

Court records, by their very nature, are public records. Settlement of an estate can lose all the privacy for the heirs.

Their are 3 ways to keep an estate out of the probate court upon a person’s death. One, have a will like this: “Being of sound minde, I have spent all my money while I was still living.” The danger of that is to run out of money before you run out of life.

The second way is to have an estate that is of less value that your resident State’s probate exemption amount. This is different in every State. It ranges between $5,000 and $100,000. So check your State laws to see how rich you have to be to have your estate go through probate.

The third alternative is to have nothing in your name at the time of death. The way to do this is to hold assets in joint names with someone else (which creates another problem). Or you can have your assets titled in a revocable living trust. This is becoming by far the most popular method to avoid probate. Check it out.

It’s true. Everybody has a Last Will and Testament. Everybody. The question is: Was your Last Will and Testament prepared by you, or was it prepared by your State Legislature?

You see, if you haven’t drafted your own will, then yours will be the one designed by your State’s law. It’ll be the one prepared by the legislature in the State where you resided at the time of death. Such laws are referred to as intestate laws. One who dies without a will, dies intestate.

The intestate laws generally require that the decedent’s assets be distributed to their next of kin. Heirs may receive a share of an intestate estate after they have reached the age of 18. The closest relative will be chosen to administer the estate and pay the bills and make the final distributions.

So if you want any say in how your estate will be handled and distributed you must make your own Last Will and Testament.

Start by making a list of your assets and estimating their value. Then decide on your objectives: Do you wish to avoid probate, to reduce the cost of settling your estate, to minimize your estate taxes, to make specific bequests, or name a guardian? What are some of the other things you want to consider?

Then prepare a will, or a living trust, to meet your objectives with your assets. Consider what help you will need in preparing your will or trust. Ask the right questions. Then get it done. Don’t put it off–even if you don’t think it’s urgent. You’ll feel pleased about what you have done.

“The only thing constant in life is change.” -Francois de La Rochefoucauld (1613-1680), a noted French writer and author of Maxims. He was also described as being “gently cynical,” and also said: “Everything is reducible to the motive of self-interest.”

Change happens so often, how do I know if or when it’s time to change some legal documents such as a Last Will and Testament, or a Revocable Living Trust? Here are some things that denote changes in your life. These events should remind you to review and perhaps change your Will (with the motive of self-interest):

1. If there has been a new child born to your family.

2. If there has been a divorce.

3. If there has been a marriage.

4. If there has been a death in the family.

5. If the value of your assets has fluctuated up or down more than $50,000.

6. If there has been an inheritance.

7. If there has been a significant change in your relationship with your heirs or beneficiaries.

8. If there has been a significant change in your medical condition.

9. If your feelings towards family or friends has changed.

10. If there has been a change in the types of assets you own.

11. If you haven’t look at your will or trust for more than eighteen months.

12. If there has been a change in the law (including tax law) which could affect things.

13. If you have received a notice from your lawyer that something should be reviewed.

AND just anytime you feel like it! It’s in your self-interest.

Sometimes you can learn more from a letter to the editor than from an all day seminar about the same subject. I just love the following letter to the editor copied from an Arizona Newspaper:

Editor:

In his recent column offering legal comment as a supposed public service, (a Phoenix Lawyer) candidly acknowledges that much of the public’s animosity toward lawyers derives from the skinning that a deceased person’s heirs receive in the probate process.

Amen to that sentiment. I have recently endured the process of settling a simple, solvent estate of relatively small size and with only one heir, and I was mulcted of nearly $10,000 in attorneys’ fees.

I invite those who would fancy a protracted adventure into the Byzantine complexities of the law to have a go at probate if they would see the legal process at its larcenous worst.

What (the attorney) could have told his legally naive readers is that . . . one can have a so-called living trust drawn and thereby avoid virtually all the preposterous make-work flapdoodle of a probated will.

The trust is easy, quick and cheap; and moreover, it is private and avoids the needless spreading of a dead loved one’s personal business affairs throughout the courthouse records.

Signed, Hole N. Wallet, M.D. (the name was changed to protect the antogonist doctor from reciprocation by a medical malpractice lawyer).