What is a living trust?
A living trust is a type of estate planning tool that allows the assets of the decedent to be placed into a trust during their lifetime. The trustor then appoints a third-party individual, known as a successive trustor, to ensure that both their medical care and end of life wishes are carried out and to distribute the assets in the trust upon the original trustor’s death, outside of traditional probate proceedings. Once the successive trustor has successfully distributed all of the trust’s assets, the trust ends.
Living trusts for married couples
A marital trust provides a way for one spouse to pass trust assets to the other spouse upon the first spouse’s death. A major benefit of a marital trust is that it allows the trust assets to transfer from one spouse to another without paying estate taxes and while allowing the surviving spouse to earn an income from the assets in the trust during their lifetime. Marital trusts avoid estate taxes because of a federal tax exemption known as the marital deduction.
Specifically, married couples can benefit from the creation of a joint living trust. By creating a joint living trust, both partners’ assets are controlled with one trust, and you can designate both the individuals who will benefit from the trust as well as someone to manage the trust in the event of death or incapacitation. A joint living trust allows married couples to reduce taxes as well as avoid probate and conservatorship proceedings.
Living trusts for unmarried couples
Unlike married couples who have many statutory protections and benefits related to estate planning, unmarried couples require a different type of estate planning tool to achieve the same benefits and avoid probate. Estate planning is even more important for unmarried couples than married couples because, under intestacy laws, significant others are not considered heirs.
One such way that unmarried couples can ensure that their significant other has control of their assets and can inherit under the estate is by the creation of a revocable living trust. A revocable living trust allows a trust to be created during the trustor’s lifetime with an appointed trustee, the terms of which can be changed by the trustor at any time preceding their death. An unmarried trustor can choose to appoint their significant other as the trustee so that their partner has the authority to manage their assets in the event of extreme illness, capacitation or death.
Married couples and unmarried couples face different obstacles when estate planning. While married couples enjoy statutory protections and tax perks through marital trusts, unmarried couples are not automatically eligible for such benefits and must carefully craft their estate documents. Unmarried couples can utilize revocable living trusts to receive similar estate benefits as married couples, while protecting their assets and avoiding probate.