The best estate planning tool for those who value their privacy is the revocable living trust (RLT). What is it? Why is it so good? How does a RLT differ from a will?
First, an RLT is a written agreement whereby you are the initial legal owner (trustee) and the initial beneficial owner (beneficiary), and you control your trust property for your own benefit and can make changes.
Your social security number attaches to any account titled in the RLT. Your named successor trustee steps in for you if you are disabled or when you pass.
That person then has the fiduciary responsibility to follow your written instructions. The court has jurisdiction over your trustee. If the trustee fails to act properly, a beneficiary can file a claim and then the court would become involved.
This is very rare.
Secondly, real estate, bank accounts, brokerage accounts, CD's, personal property titled in a RLT do not need to be listed on an Inventory and Appraisement, which is available for the world to see.
In other words, assets titled in your RLT do not go through probate and are kept private. Upon incapacity or death, title to trust assets vest immediately in your named successor trustee by operation of law.
They are then responsible to act as a fiduciary to carry out your instructions. If you have only a will, then all assets (including tangible personal property) in your name alone that are not designated by beneficiary or owned jointly with right of survivorship will have to be listed on the Inventory and Appraisement.
It will not be private. Also, there will be more legal fees due to the accounting and extra paperwork required at the court.
Third, a trust is just like a will in that it directs who will be responsible and it directs what they shall do and who shall inherit what and how.
Unlike a will, a trust can be administered without court oversight. The trustee is still accountable, but he is accountable directly to the beneficiaries. This saves time, money, taxes and legal fees. It also keeps your affairs private.
Don't be fooled. If you use a will alone, then the legal fees will be more and the court costs will be more; and if you own real estate in another state, a probate proceeding will need to occur in the other state, along with all the concomitant legal fees, court costs and lack of privacy.
In Beaufort County, if your probate assets are about $1 million, then the fee due to the treasurer (not the legal fee) will be nearly $2,000. When people need to go through probate in other states due to having owned real estate there in their own name, then the costs can easily approach $5,000 or more.
All of this cost and lack of privacy can be easily avoided with the proper use and funding of a RLT.
For those who wish things to go as smoothly and inexpensively as possible, consider using a RLT. Sometimes, ensuring ease of administration by using a RLT can be a gift in itself.
Mark F. Winn, J.D., Master of Laws (LL.M.) in estate planning, is a local asset protection, estate and elder law planning attorney. mwinnesq.com