A critical piece in one’s estate plan is the disposition of assets upon death.
This can be done through a last will and testament or a revocable trust, which is referred to as a “will substitute.” When a revocable trust is utilized, it is the governing instrument as to where assets go, and it does have some advantages over a will.
A revocable trust provides more privacy than a will. When someone dies, his or her will is lodged with the court and becomes public record. A trust does not become public record, and there is no need to show any public parties or entities the dispositive provisions of the trust. This protects the privacy of the creator of the trust and the beneficiaries.
Furthermore, a trust is a good vehicle to manage assets in the event of incapacity. While a will does not come into effect until death, a trust is in force as soon as it is signed. If the trust is properly funded, meaning that the person’s assets are transferred into the name of the trust, then the successor trustee can easily step in if the creator of the trust (also known as the “settlor” or “grantor”) becomes incapacitated and can manage the trust assets and make distributions for the benefit of the settlor. It is also typically easier, faster, and cheaper for the successor trustee to administer the trust upon the death of the settlor, rather than going through the probate process to administer an estate.
It is especially beneficial to use a revocable trust when you have out-of-state property. This is because, typically, one must go through the court process of probate to administer your estate in any state where you own real property in your name individually. Therefore, if you have real property in two states other than Colorado, your loved ones could be forced to open probate in three states, resulting in greater costs and a much longer process. If the real properties are transferred to a revocable trust, then this is avoided.
While there are advantages to using a revocable trust, it may not be the best estate planning tool for everyone. It is important to consult an estate planning attorney in order to determine what is best for you.
Editor’s Note: This article was submitted by Sara E. (Jones) Bucar. Sara is a member of the Boulder County Bar Association, the Denver Bar Association, and the Colorado Bar Association. Sara E. (Jones) Bucar is with Vincent, Romeo & Rodriguez, an established law firm with offices in Englewood and Louisville. She may be reached at 303-604-6030 or by email at Sara@elderlawcolorado.com.