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The Disadvantages of a Living Trust - A Lawyer's Confession

At the many trust seminars I have held over the years, I have often heard the question, "What are the disadvantages of a Living Trust?" My acknowledge has always been "They are so few and so minor that they should not be considerations in your decision concerning establishing a trust." That statement is true to the extent that the disadvantages are minor, but I don't want to mislead you. There are a few clear disadvantages that you may want to consider.

1. first funding of your trust can be a real pain. The larger and more complicated your Living Trust estate is, the more of a pain it will be. In order for your Living Trust to be effective, all assets must be transferred to the trust. This can be time provocative drudgery. All real asset must be transferred. This means a separate deed for each asset must be prepared. Many counties/states have recording forms that must be prepared and then the deed and forms must be recorded at your county recorder's office. You must get ready the deeds and forms yourself or pay somebody to do them for you. This also means trips to the recorder and waiting in lines.

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All bank accounts, stocks, bonds, mutual funds, and other investments with documents of title must be transferred. This means visiting each bank, broker or other financial professional. Needful items of asset such as boats, autos, motor homes and maybe firearms must have title changed. This means more documents of title must be filed or recorded and more standing in line will occur. You will also want to make your Living Trust your secondary Ira, annuity, 401K, and insurance beneficiary. This means more work.

Of course, this does not all have to be done immediately, but if something happens to you before it is complete, you risk probate. Once you have finished, this task becomes much easier as you will thereafter get all new assets in the name of your Trust production changes unnecessary. Still, this first process can be frustrating.

2. Writing a check can be difficult. Every time you write a check at the grocery store, division store, or other venue, you may find yourself trying to by comparison to the clerk that you are the trustee of your Living Trust and that your Id is enough to verify the check. Trusts have become more base and more clerks are aware of them, but there is still a large part of community that is clueless about Living Trusts and these folks can make life difficult.

For that reason, I normally advise that you do not keep large sums in your personal checking account, so that it remains in your name or names, thus avoiding the awkward explaining in the checkout line, while not risking probate.

3. Refinancing real estate can be difficult. Most banks or mortgage companies will wish that your real estate is not in a Living Trust while they are financing and then recording their financial interest in the property. This means taking the asset out of your Trust while the financing and then returning it to your Trust when the transaction is faultless and recorded. This can be very time consuming.

4. You must always remember that you have a trust when purchasing whatever new and the citizen you deal with may be ignorant about trusts. When you buy that new car, you want to take title in your name(s) as trustee of your trust. It is easy to forget to do that, especially when your trust is new and you aren't used to it. You can run into a car salesperson that does not understand trusts. You may run into bankers who don't know the unlikeness between revocable and irrevocable trusts and they may insist that you need a separate Federal tax Id for your trust.

Is this a major drawback? No, it's not, but it can be awkward, time provocative and a itsybitsy frustrating. (In case you are wondering, an irrevocable trust is used for other purposes such as asset protection, charitable gifts or tax avoidance purposes. They are separate entities and need tax Id numbers. Once asset is in them, it cannot be removed. Your Living Trust will be a joint revocable living trust and is an prolongation of both of you (if a couple), not requiring a separate tax Id.)

5. Perhaps the biggest drawback to a Living Trust is also one of its many benefits. After your death, there will be no probate. Everything is done swiftly and quietly without lawyers or courts. The benefits of this are obvious, but what is the drawback?

The drawback is that there is no one to supervise this distribution. There is no one seeing over the shoulder of your successor trustee to be sure they act properly. In other words, you must trust your trustee. This is why it is called a trust. It is not difficult for a successor trustee to deceive other beneficiaries or mishandle assets. There is no judge to present the records and accounting.

There is a explication if you have any reservations or doubts about your successor trustee. You can name co-trustees to watch each other, if you can trust them not to co-conspire. However, you then run the risk that they may not agree on issue about distribution and that can lead to the courts to resolve disputes, just what you are trying to avoid. You can name 3 trustees so that you always have a majority, but 3 or more can become cumbersome. You can name expert trustees or banks to act as your successor trustee, and they are typically licensed and bonded and will do as directed, but they will be expensive.

In conclusion, despite all these drawbacks, for nearly everyone, a Living Trust is still the best available estate plan. In virtually every case, the benefits of a Living Trust far outweigh the disadvantages. For example, there are no disadvantages to a Living trust concerning revenue taxes or estate taxes. A Living Trust is still the best way to avoid probate which is enough surmise to tolerate the difficulties. I have written extensively on the benefits elsewhere, and they are many and they are valuable. I just do not want to be accused of sugar coating the few disadvantages. I want my clients to set up their trust with their eyes wide open.

The facts in this article is provided for educational purposes only. It is not and should not be thought about legal advice. For your personal applications of this data, you should consult a local attorney well-known with your local requirements.

The Disadvantages of a Living Trust - A Lawyer's Confession

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