If you own property in other states and in other countries, your estate must go through probate in those states and countries besides the state you die in if you do not have a living trust. A will is not enough to protect your estate from going through probate.

The legal requirements of probate can be very costly and extremely aggravating for your heirs. A living trust will enable your heirs to avoid all of this unpleasantness.

The process of estate planning is helped to go smoothly by a good estate planning attorney. You should decide in advance a few important questions in order to help the estate planning process:

When you set up a living trust -- while you (or you and your spouse) are alive and in good mental health. you (and your spouse) are the Trustee(s). In the trust you name Successor Trustees to take over when you are incapacitated or deceased.

Who do you want to make the decision that you are no longer capable of handling your own affairs (and thus the Successor Trustees will take over)?

Do you want one person such as your spouse to make that decision? More than one person? Your spouse and children? Your spouse and doctor? Two doctors? The choice is up to you, but think it through carefully.)

Your trust will always name a Successor Trustee, but have you considered whether you want to name Successor Trustees to serve as Co-Trustees?

For example, if you and your spouse have children from different marriages, you may want to ensure that neither set of children has power over the other set of children. One way to try to prevent this is to make sure there is always a separate Successor Trustee (serving as Co-Trustees) for each set of children so that neither set of children can be cut out of an inheritance.

You must decide to whom to leave family heirlooms?

This situation can cause real friction in the family. If you've promised your mother's wedding ring to a daughter or a family portrait to a son, you need to specify these distributions in your trust.

You should name alternate beneficiaries in the unlikely case that all your family is also deceased?

If you do NOT name alternate beneficiaries to those stated in your living trust - your estate planning attorney may use the legal designation that your "heirs at law" would be your alternate beneficiaries. This means that inheritance law decides who is next in line to inherit, which could result in a cousin you never heard of, or even hate, being named your heir.

Instead, you should ensure that your estate planning lawyer puts in your living trust specific family members, friends, and/or charities as alternate beneficiaries to cover this unlikely, but possible, situation.

The above information is NOT legal advice, only considerations for you to discuss with your own estate planning attorney. The providing of this material does not establish an attorney-client relationship.


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If you want to learn more about why you need a living trust in addition to a will in order to avoid probate, watch the short free video on the home page of Mitchell R. Miller's http://www.estateplanningforyou.com . There's also a second short free video explaining why you should review your estate planning every 4-5 years. Mitchell R. Miller has been a tax, trust and estate attorney for over 30 years.