Jim Kiley talks about Living Trusts - Part 1 Jim Kiley talks about Living Trusts - Part 1 Transcripts:
Jim: The interesting estate case, interesting is probably not the word, sometimes they get more complex than they need to be. What?s becoming popular now are revocable living trusts, and we'll advice certain of our clients to use a revocable living trust in lieu of a will. It is essentially a pass through. It?s as if you haven?t relinquished control when you create a revocable living trust. You put all of your assets into the trust, you are the co-trustee. It's not an estate tax mitigation tool. It's not used in that sense. It's used in lieu of a will to avoid probate. We've advised it for many of our clients in certain contexts where there is extended family, and the estate or the person making the will, or the guarantor, in this case the person creating the trust, doesn?t know who they are. We had a client, not too long ago, an elderly woman who had some relatives from Italy, and her husband was predeceased, she had no children. So under New York State law the intestacy statue branches out into this extended family. While you can make a will, and direct that your state be given to charity, or the person next door or whomever, the will will not past your probate until that extended family, or the heirs of law as defined in the New York state law, are notified. The problem with this particular client was, not only did she not know where they were, in any case she didn?t know who they were. She had cousins in Italy, she had a general idea how many they were, but certainly didn?t know where they were or what their names were. In that case, we did a revocable living trust. If we hadn?t, when she would have passed away her executor would?ve to have served paperwork on all of these heirs, and obviously if you didn?t know who they were, you would have had to hire a genealogist or an investigator at great sums of money. It would have complicated and lengthened the probate process. So that was a person we did a revocable living trust for, and it was a perfect solution. Many people also use it in lieu of a will because it?s private. You don?t realize when a will is probated; this is an open process, open to the public. So if John Rockefeller Junior probates the will of his father, I can go into Surrogate?s Court, pull the file, make copies, take a look at the documents. In that sense some people use it to avoid probate for privacy concerns, and it's also a tool that you can use if you feel a challenge to a will might occur. If there is a large estate, and there is estranged family member, there is a number of things that you can do. You can create a will and put a no contest clause in. Very often we'll do that, terrorem clause it's called, or use a revocable living trust to make it a little bit more difficult for that estranged child, or relative, to come in and challenge the will.
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