A "living" trust (also called an "inter vivos" trust) is simply a trust you create while you're alive. The beneficiaries you name in your living trust receive the trust property when you die. You could instead use a will, but wills must go through probate—the court process that oversees the transfer of your property to your beneficiaries.
Many people create a revocable living trust as part of their estate plan. These trusts can be modified or revoked at any time. Typically, you'll name yourself as the "trustee" of your trust. This means that while you are alive, you retain control of the trust and its property. In your trust document, you will also name a "successor trustee" to take over and manage the trust (distribute your property) after you die. (If you create a shared living trust, as is often done by spouses, then your successor trustee would assume control after both spouses have died.)
In contrast, irrevocable trusts cannot be revoked or modified after they are signed. Irrevocable trusts can be useful tools for specific goals, like reducing taxes, but they require giving up ownership and control of trust property.
When you set up a living trust to transfer your property to your loved ones after your death, you can potentially save them time, hassle, and money. Property left through a will (rather than a living trust) might be tied up for months or even years in probate court, and could involve court costs and lawyers' fees. By contrast, property left through a trust can be distributed to your beneficiaries almost immediately, and often without the need for an attorney.
However, Massachusetts is one of the states that has fully adopted the Uniform Probate Code, a model law that streamlines the probate process. In other words, probate in Massachusetts might not be quite as cumbersome as it is in other states. In addition, Massachusetts has a simplified probate process for "small" estates. In Massachusetts, your estate can qualify for this probate shortcut if:
If your estate is likely to qualify for a shortcut, the probate process will be fairly quick and easy, so you might not need to worry about making a living trust just to avoid probate.
Yes, you'll still need a will. This might seem confusing—isn't the point of a living trust to avoid needing a will? Yes, it is, and your will might never be used. But you should still write one, for one or both of the following reasons:
Probably not. Most people do not need to worry about federal estate taxes anyway because the federal estate tax is levied only on estates worth close to $12 million (or almost $24 million for married couples). That said, Massachusetts imposes its own separate state estate tax and has one of the lowest state estate tax exemption amounts in the country. In Massachusetts, if your estate is worth more than $1 million, it might owe estate taxes to the commonwealth. If you expect your estate to be over $1 million, you might be able to use a more complicated trust (such as an AB trust) to reduce or avoid estate taxes. To create such a trust, you'll want to consult a lawyer.
To make a living trust in Massachusetts, you:
You can use WillMaker & Trust to make a living trust using your computer. It has a simple interview format that allows you to complete the trust at your own pace, and it gives you lots of legal and practical help along the way. Based on your responses, the program produces a living trust document customized for you and your situation. With WillMaker & Trust, you can also make a will, powers of attorney, health care directives, and many other useful documents. Use it just for yourself or for your entire family.
For more on Massachusetts estate planning issues, see Massachusetts Estate Planning.