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Will Vs Living Trust

Will Vs Living Trust

The terms “living will”, “health care directive”, and “advance directive”, all refer to the legal document that lets people state their wishes for end-of-life medical care. A living will, despite its name, isn’t at all like the wills that people use to leave property at their death. A living will, also called a directive to physicians or advance directive, is a document that lets people state their wishes for end-of-life medical care, in case they become unable to communicate their decisions. It has no power after death. If you’re helping someone with their estate planning (or doing your own), don’t overlook a living will. It can give invaluable guidance to family members and healthcare professionals if a person can’t express his or her wishes. Without a document expressing those wishes, family members and doctors are left to guess what a seriously ill person would prefer in terms of treatment. They may end up in painful disputes, which occasionally make it all the way to a courtroom.

How to Create a Living Will

The requirements for a living will vary by state so many people hire a lawyer to prepare their living will. Most people can create this simple document – along with the other typical estate planning documents – without the high legal fees by using a quality software application that accounts for their state’s laws. If you need to write or update a will or trust, you can take care of your living will at the same time.

Making Your Own Living Will

You can create a legally binding health care directive (living will) without paying an attorney by using reputable estate planning software. In addition to a living will, you can create a complete set of estate planning documents including your will, power of attorney, living trust, and more.

How Living Wills Work

Many states have forms for advance directives, allowing residents to state their wishes in as much or as little detail as they’d like. For example, it’s common to direct that “palliative care”—that is, care to decrease pain and suffering always be administered, but that certain “extraordinary measures,” like cardiopulmonary resuscitation (CPR) not be used in certain circumstances. To be valid, a living will must meet state requirements regarding notarization or witnesses. A living will can be revoked at any time. The document can take effect as soon as it’s signed, or only when it’s determined that the person can no longer communicate his or her wishes about treatment. Even if it takes effect immediately, doctors will rely on personal communication, not a document, as long as possible.

Creating a living will or advance directive

• Hire an attorney or do it yourself: An attorney who focuses on estate planning can create an advance directive for you and will know your state’s laws. You can also create one on your own, but you must make sure it meets your state’s requirements. Resources available to you include legal document creation software; a free living will form provided by your physician, local hospital, local senior center, or state’s medical association; and The National Hospice and Palliative Care Organization, which allows you to download a state-specific advance directive form.

• Research your state’s requirements: No matter how you create your advance directive, find out your state’s requirements. You must be at least 18 years old and of sound mind at the time you create your living will. Depending on your state, you may also need witnesses and/or notarization.

• Determine your end-of-life care: Decide what kind of medical treatments you want for yourself, such as artificial respiration, palliative care, or nourishment, when you get to the end of life or become completely incapacitated. Consider researching these health care matters and discuss them with your physician. Once you’ve made your decisions, write them down along with your rationale and feelings to help your loved ones understand your preferences, especially if it’s possible they might disagree.

• Reassess your living will as needed: Your advance directive isn’t set in stone. Change it as your perspective or situation changes due to age, decline, or a major life event, such as death, divorce, or a diagnosis.

A trust is a fiduciary relationship in which one party, known as a trustor, gives another party, the trustee, the right to hold title to property or assets for the benefit of a third party, the beneficiary. Trusts are established to provide legal protection for the trustor’s assets, to make sure those assets are distributed according to the wishes of the trustor, and to save time, reduce paperwork and, in some cases, avoid or reduce inheritance or estate taxes. In finance, a trust can also be a type of closed-end fund built as a public limited company.

Understanding Trusts

Trusts are created by settlors (an individual along with his or her lawyer) who decide how to transfer parts or all of their assets to trustees. These trustees hold on to the assets for the beneficiaries of the trust. The rules of a trust depend on the terms on which it was built. In some areas, it is possible for older beneficiaries to become trustees. For example, in some jurisdictions, the grantor can be a lifetime beneficiary and a trustee at the same time. A trust can be used to determine how a person’s money should be managed and distributed while that person is alive, or after their death. A trust helps avoid taxes and probate. It can protect assets from creditors, and it can dictate the terms of an inheritance for beneficiaries. The disadvantages of trusts are that they require time and money to create, and they cannot be easily revoked. A trust is one way to provide for a beneficiary who is underage or has a mental disability that may impair his ability to manage finances. Once the beneficiary is deemed capable of managing his assets, he will receive possession of the trust.

Categories of Trusts

Although there are many different types of trusts, each fits into one or more of the following categories:

Living or Testamentary

A living trust – also called an inter-vivos trust is a written document in which an individual’s assets are provided as a trust for the individual’s use and benefit during his lifetime. These assets are transferred to his beneficiaries at the time of the individual’s death. The individual has a successor trustee who is in charge of transferring the assets. A testamentary trust, also called a will trust, specifies how the assets of an individual are designated after the individual’s death.

Revocable or Irrevocable

A revocable trust can be changed or terminated by the trustor during his lifetime. An irrevocable trust, as the name implies, is one the trustor cannot change once it’s established, or one that becomes irrevocable upon his death. Living trusts can be revocable or irrevocable. Testamentary trusts can only be irrevocable. An irrevocable trust is usually more desirable. The fact that it is unalterable, containing assets that have been permanently moved out of the trustor’s possession, is what allows estate taxes to be minimized or avoided altogether.

Funded or Unfunded

A funded trust has assets put into it by the trustor during his lifetime. An unfunded trust consists only of the trust agreement with no funding. Unfunded trusts can become funded upon the trustor’s death or remain unfunded. Since an unfunded trust exposes assets to many of the perils a trust is designed to avoid, ensuring proper funding is important.

Common Purposes for Trusts

The trust fund is an ancient instrument – dating back to feudal times, in fact – that is sometimes greeted with scorn, due to its association with the idle rich (as in the pejorative “trust fund baby”). But trusts are highly versatile vehicles that can protect assets and direct them into the right hands in the present and in the future, long after the original asset owner’s death. A trust is a legal entity employed to hold property, so the assets are generally safer than they would be with a family member. Even a relative with the best of intentions could face a lawsuit, divorce or other misfortune, putting those assets at risk. Though they seem geared primarily toward high net worth individuals and families, since they can be expensive to establish and maintain, those of more middle-class means may also find them useful – in ensuring care for a physically or mentally deficient dependent, for example. Some individuals use trusts simply for privacy. The terms of a will may be public in some jurisdictions. The same conditions of a will may apply through a trust, and individuals who don’t want their wills publicly posted opt for trusts instead. Trusts can also be used for estate planning. Typically, the assets of a deceased individual are passed to the spouse and then equally divided to the surviving children. However, children who are under the legal age of 18 need to have trustees. The trustees only have control over the assets until the children reach adulthood. Trusts can also be used for tax planning. In some cases, the tax consequences provided by using trusts are lower compared to other alternatives. As such, the usage of trusts has become a staple in tax planning for individuals and corporations. Assets in a trust benefit from a step-up in basis, which can mean a substantial tax savings for the heirs who eventually inherit from the trust. By contrast, assets that are simply given away during the owner’s lifetime typically carry his or her original cost basis.

Types of Trust Funds

• Credit Shelter Trust: Sometimes called a bypass trust or family trust, this trust allows a person to bequeath an amount up to (but not over) the estate-tax exemption. The rest of the estate passes to a spouse, tax free. Funds placed in a credit shelter trust are forever free of estate taxes even if they grow.
• Generation-Skipping Trust: This trust allows a person to transfer assets tax free to beneficiaries at least two generations their junior typically, their grandchildren.
• Qualified Personal Residence Trust: This trust removes a person’s home (or vacation home) from their estate. This could be helpful if the properties are likely to appreciate greatly.
• Insurance Trust: This irrevocable trust shelters a life insurance policy within a trust, thus removing it from a taxable estate. While a person may no longer borrow against the policy or change beneficiaries, proceeds can be used to pay estate costs after a person dies.
• Qualified Terminable Interest Property Trust: This trust allows a person to direct assets to specific beneficiaries their survivors at different times. In the typical scenario, a spouse will receive lifelong income from the trust and children will get what’s left after the spouse dies.
• Separate Share Trust: This trust lets a parent establish a trust with different features for each beneficiary (i.e., child).
• A Spendthrift Trust: This trust protects the assets a person places in the trust from being claimed by creditors. This trust also allows for management of the assets by an independent trustee and forbids the beneficiary from selling his interest in the trust.
• Charitable Trust: This trust benefits a particular charity or non-profit organization. Normally, a charitable trust is established as part of an estate plan and helps lower or avoid estate and gift taxes. A charitable remainder trust, funded during a person’s lifetime, disperses income to the designated beneficiaries (like children or a spouse) for a specified period of time, and then donates the remaining assets to the charity.
• Special Needs Trust: This trust is meant for a dependent who receives government benefits, such as Social Security disability benefits. Setting up the trust enables the disabled person to receive income without affecting or forfeiting the government payments.
• Blind Trust: This trust provides for the trustees to handle the assets of the trust without the knowledge of the beneficiaries. This could be useful if the beneficiary needs to avoid conflicts of interest.
• Totten Trust: Also known as a payable-on-death account, this trust is created during the lifetime of the trustor, who also acts as the trustee. It’s generally used for bank accounts (physical property cannot be put into it). The big advantage is that assets in the trust avoid probate upon the trustor’s death. Often called a “poor man’s trust,” this variety does not require a written document and often costs nothing to set up. It can be established simply by having the title on the account include identifying language such as “In Trust For,” “Payable on Death To” or “As Trustee For.”

Why and How to Transfer Your Assets To Your Revocable Living Trust

These days many people choose a revocable living trust instead of relying on a will or joint ownership in their estate plan. They like the cost and time savings, plus the added control over assets that a living trust can provide. For example, when properly prepared, a living trust can avoid the public, costly and time-consuming court processes at death (probate) and incapacity (conservatorship or guardianship). It can let you provide for your spouse without disinheriting your children, which can be important in second marriages. It can save estate taxes. And it can protect inheritances for children and grandchildren from the courts, creditors, spouses, divorce proceedings, and irresponsible spending. Still, many people make a big mistake that sends their assets right into the court system: they don’t fund their trusts.

Will Vs Living Trust

When you need legal help with a Will or a Living Trust, Estate Plan or Probate in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

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Michael Anderson

About the Author

People who want a lot of Bull go to a Butcher. People who want results navigating a complex legal field go to a Lawyer that they can trust. That’s where I come in. I am Michael Anderson, an Attorney in the Salt Lake area focusing on the needs of the Average Joe wanting a better life for him and his family. I’m the Lawyer you can trust. I grew up in Utah and love it here. I am a Father to three, a Husband to one, and an Entrepreneur. I understand the feelings of joy each of those roles bring, and I understand the feeling of disappointment, fear, and regret when things go wrong. I attended the University of Utah where I received a B.A. degree in 2010 and a J.D. in 2014. I have focused my practice in Wills, Trusts, Real Estate, and Business Law. I love the thrill of helping clients secure their future, leaving a real legacy to their children. Unfortunately when problems arise with families. I also practice Family Law, with a focus on keeping relationships between the soon to be Ex’s civil for the benefit of their children and allowing both to walk away quickly with their heads held high. Before you worry too much about losing everything that you have worked for, before you permit yourself to be bullied by your soon to be ex, before you shed one more tear in silence, call me. I’m the Lawyer you can trust.