Living Trust vs Will
It isn't surprising that people often do not have a serious discussion about their financial situation. While talking about money is uncomfortable, avoiding it could prove disastrous. It's important to have a frank discussion before a person may experience illness or frailty, and a good place to start is a discussion about a Living Trust or a Will.
Typically, the Living Trust provides that the person creating the trust (the "grantor") transfer their assets into the Living Trust for their own benefit during their lifetime (lifetime "beneficiary") and then for the benefit of any beneficiaries (remainder "beneficiaries"). The grantor will usually be the trustee of the Living Trust. This means that the grantor will control the trust property. In addition, the grantor can amend or revoke the Living Trust . One advantage of a Living Trust over a Will is the avoidance of probate. Probate is a state Court proceeding in which a Last Will is validated by the Court. All Wills must be probated to be effective. Which should you have, a Living Trust or a Will? You should consult with a qualified estate planning attorney to help you decide.
It may not always be easy or accommodating to transfer assets into a Living Trust. Here is a list of potential assets that may need to be transferred. Remember, if the asset is not owned by the trust, the trust provisions cannot control its disposition.
(a) Real Estate - if you want to transfer a home or other real property to a trust, a new deed must be made and recorded with the local real estate records. In New York City certain tax transfer forms such as the New York City Real Property Transfer Tax and New York State tax papers must be prepared and filed along with the deed.
(b) Cooperative Apartment - when a cooperative apartment is being transferred, the cooperative corporation must be contacted so that it can approve the transfer. The cooperative corporation will need to issue a new stock certificate naming the trust as the owner of the apartment. There may be other papers and fees to pay in order to obtain the corporation's approval of the transfer.
(c) Mortgages - if the real estate or cooperative apartment that is being transferred to the trust is subject to a mortgage, it is necessary to notify the mortgage bank and to obtain its approval. If you do not let the bank know, it may advise you that the mortgage must be immediately paid in full due to the unauthorized transfer.
(d) Bank and brokerage accounts - banks and brokerage companies all have various forms and authorizations that must be completed before the name on any account can be changed into a trust. All requirements must be investigated thoroughly so that the transfer is properly completed.
I was admitted to the New York State Bar in 1979 and admitted to the Supreme Court of the United States in 1982 after graduating in the top 10% of my class at The New England School of Law in Boston. I was admitted to the United States Court of Appeals, Second Circuit and the United States District Court for the Southern and Eastern Districts of New York. I started my own law practice in New York City in 1985. I have many years of experience successfully working with and advising clients in creating and executing plans that effectively express their personal desires regarding the disposition and protection of assets. I do this while providing potential tax advantages and security for family and beneficiaries.
For personalized attentive service, please call (212) 355-2575 or arrange to visit me at 845 Third Avenue, Suite 1400, New York, NY 10022 (near 52nd Street)