Problems with Revocable Living Trusts

Tip: If you have a Revocable Living Trust, don’t forget to fund it.

A Revocable Living Trust is one way to transfer property at your death. To avoid probate is one of the primary reasons people set up a revocable living trust. Another good reason to set up a trust, is if you own property in multiple states. By having a trust, it is not necessary to probate in each state.

But  creating the trust is only the first step; the next step is to fund the trust. To fund the trust means you  must transfer your property into the trust. How you transfer property into the trust depends on what type of property it is. For example, if you want to transfer your home into the trust, you must sign and record a deed.

You don’t just fund the trust once, but every time you procure additional property or accounts—during your entire lifetime—you must take the steps to put them into your trust. Twenty years down the road, if you sell your house and buy a new one, you must deed the new house into the trust. Often, lives get busy, and people simply forget to put newly acquired property into the trust.

And therein lies the problem. Sometimes people will set up a trust, but for some reason, they never transfer their property, or they forget to transfer newly acquired property into the trust; so, at their death, their estates end up being probated anyway.

Most people who create a revocable living trust will also write a pour over will. These wills provide if the person failed to transfer property into the trust, the property is transferred into the trust by their will at their death.

I recently saw a case where a couple set up a revocable living trust, but never put their property into the trust and then passed away. This couple only had one son, and everything went to him. However, they had a pour over will that accompanied the trust, which said their property had to first be transferred into the trust, and then the trust said their property went to the son. This created an expensive, absurd result that was caused by not properly funding the trust.

In conclusion, managing a trust properly can be complicated. If you are going to
have a trust, seek competent legal advice, make sure to put your property into the trust, and then review it with your attorney periodically to make sure
everything is in order.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

February 2022