**Laws change frequently, and each individual's situation is unique. Therefore, the following article is not intended as legal advice. To obtain particularized, up-to-date legal advice, please contact us.**

Despite the claims of the mass marketers of living trusts, the revocable living trust is not the estate planning tool of choice of most people. For a few people, it is a valuable estate planning tool, but for most, it is not worth the extra expense and record keeping.

The claim that living trusts save estate taxes is simply wrong. Any tax-savings device that can be incorporated into a living trust can just as easily be incorporated into a will, and wills have some minor tax advantages over living trusts. The claim that a living trust avoids probate is true, but misleading. For most residents of Washington, avoiding probate is simply not worth the effort.

Most of what must be done when a person dies (tax returns, collection and distribution of the decedent’s assets, payment of creditors, etc) must be done regardless of whether the decedent left a living trust or a will. If the decedent left a will, there must also be a probate.

Virtually all probates in Washington are "non-intervention" probates, which means that the court does not intervene. The court’s only involvement is to confirm the validity of the will and the appointment of the personal representative, both of which are usually accomplished in a five-minute proceeding that need not even be scheduled ahead of time. After that, a personal representative’s administration of an estate and a trustee’s administration of a living trust are virtually identical.

The cost of this minor proceeding is generally about the same as the extra cost of a living trust, but probate is an expense that need not be incurred until the time of death. Contrary to the claims many have made, the estate assets are not tied up by the court, and the time and expense necessary to administer the estate are no more than the time and expense necessary to administer a trust.

Living trusts do have their legitimate uses. A person owning real property in several states will want to consider a living trust, in order to avoid ancillary probates in each of the other states. A famous person may want to consider a living trust for privacy reasons, although very little about a person’s estate is a matter of public record when there is a probate. A couple wanting professional management of their affairs while they are alive or after the first spouse’s death also may want to consider a living trust. These are legitimate reasons for using a living trust; simply avoiding probate usually is not.


*Reprinted with permission of the author, Thomas Culbertson of Lukins & Annis, attorneys at law – Spokane