The words “living will trust” are not really good legal terminology. However, a lot of people use the term when they are first investigating a living trust. A will is what people naturally think of when we think of how property will be distributed after someone dies. A trust also distributes property after a person’s death, which can lead to the confusion and the use of the term “living trust will.”
A living trust and a will are separate and distinct, although a living trust can be thought of as taking the place of a standard will. So, as a lawyer, if someone asks me about a “living trust will,” I’m not sure what they would like.There is a legal document called a living trust and a different legal document called a will. Actually, there should always be a will accompanying a living trust. It is called a “pour over will.” A pour over will is a safeguard mechanism for a living trust.
Sometimes living trusts are known as –”living revocable trust” or “revocable living trusts”. The key here is that they are revocable. Being able to change or rescind the trust at any time is a key element of the revocable living trust. Living trusts will enable people to leave more to their heirs, while avoiding estate taxes and probate. Only if a living trust is properly set up and managed will the heirs be able to avoid the probate process.
Most people who get a living trust do not avoid probate. There is a legitimate argument in the legal community against living trusts, because so many of them fail to give the probate protection that was “sold” to the family. The dilemma is not caused by the trust. The way attorneys are educating their clients is the problem. In order to avoid probate, clients need to be educated on how to “use” their living trust.
The deceased’s assets will need to be probated if the living trust does not function properly. There is no other option than going to the probate court for a prolonged legal proceeding. When there is a will, the probate court will use it to help them make decisions throughout the probate proceedings. An “intestate” proceeding is what takes place when there is no will. When someone dies without a will, he or she is said to be “intestate.”
A pour over will should be drawn in conjunction with a living revocable trust. When there is a pour over will and if for some reason the assets need to be probated, the probate courts will look to the pour over will to help with the probate process. The pour over will won’t be needed if the trust works properly and actually avoids probate.
A pour over will does not outline how property is distributed in the same way a traditional will does. When property needs to be probated, the pour over will tells the court that all of the property should be “poured over” into the living revocable trust, and then distributed as outlined in the living trust. In his new book, Guaranteed Millionaire, Lee R. Phillips discusses in detail revocable living trusts and pour over wills. In addition, click the link to order Lee’s FREE DVD, “Using the Law to Make Money and Protect Your Assets.”

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