What Is a Living Trust?

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.

Do I Need a Living Trust in New York?

When you set up a living trust to transfer your property to your loved ones after your death, you can potentially save them a lot of time, hassle, and probably money. Property left through a will (rather than a living trust) might be tied up for months or even years in probate court (called Surrogate's Court in New York), and could involve significant 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.

Some states have fully adopted a model law called the Uniform Probate Code, which streamlines the probate process, but unfortunately New York is not one of these states. However, New York does offer a simplified probate process for "small" estates (defined as under $50,000, excluding any real estate and amounts that must be set aside for family members). The procedure is called "settlement of small estates without court administration." If the value of the property you leave behind is less than $50,000, the probate process will be relatively straightforward and inexpensive, and you might not need to worry about making a living trust just to avoid probate.

In New York, If I Make a Living Trust, Do I Still Need a Will?

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:

• Designating a guardian for minor children. You cannot use a trust to name a guardian for your minor children. For this reason alone, if you have minor children, you should write a will that names the guardian.
• Accounting for property that you have not transferred to your trust. It happens all the time—people create a trust and forget to formally transfer property to the trust (for example, they never get around to changing the deed on their house). Or, people buy or inherit property after they've set up their trust, and forget or don't know to take ownership as the trustee of their trust. Either way, the property will not be distributed according to the terms of the trust. You should have a will as a backup to dictate how assets that are not in the trust should be distributed.

If you don't have a will, any property that isn't transferred by your living trust or other method (such as joint tenancy) will go to your closest relatives as determined by New York state law.

Can a Living Trust Reduce Estate Tax in New York?

Probably not. Most people do not need to worry about federal estate taxes because the federal estate tax is levied only on estates worth close to $12 million (or almost $24 million for married couples). That said, New York state has its own separate estate tax, which has a lower threshold (as well as a lower tax rate).

If you are worried about estate taxes, you might be able to use a more complicated trust (such as an AB trust) to reduce or avoid estate taxes—but you'll want to consult a lawyer.

How Do I Make a Living Trust in New York?

To make a living trust in New York, you:

1. Choose whether to make an individual or shared trust.
2. Decide what property to include in the trust.
3. Choose a successor trustee.
4. Decide who will be the trust's beneficiaries—that is, who will get the trust property.
5. Create the trust document. You can get help from an attorney or use Willmaker & Trust (see below).
6. Sign the document in front of a notary public.
7. Change the title of any trust property that has a title document—such as your house or car—to reflect that you now own the property as trustee of the trust.

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 New York estate planning issues, see New York Estate Planning.