The Law offices of J. Vincent Perryman

Revocable Trusts in Memphis, TN

What is a Revocable Trust?

Revocable Trusts go by several names including, Living Trusts, and Revocable Trusts, however, there is no difference in features.

As the name implies, these Trusts are revocable by the “Settlor” - the person who establishes the trust and contributes property to the trust. The trust is drafted to become irrevocable at the death of the Settlor. In fact, this feature is one advantage these Trusts have over Wills and Powers of Attorney. If the trust is properly funded, the named Successor or Co-Trustee has authority from the moment of incapacity or death of the Settlor. In the case of the Co-Trustee, their authority exists from the moment they are named and the trust document is executed.

I have a will. Why would I want a Living Trust?

A will may not be the best plan for you and your family, primarily because a will does not avoid probate when you pass away. A will must be verified by the probate court before it can be enforced. A trust will take effect immediately without the assistance of the Memphis courts.

What is Probate?

Probate is the legal process through which the court sees that, when you pass away, your debts are paid and your assets are distributed according to your will. If you don’t have a valid will, you assets are distributed according to state law.

What is bad about Probate?

Probate can be expensive. In less expensive jurisdictions the minimum fee can be $2,500.00 plus filing fees and bond, which could add up to almost $3,500.00. The typical range is 3% to 5% of the probate estate, and if you own property in other states, your family will likely face multiple probates, each one according to the laws in that state, with each incurring another fee.

Probate takes time, anywhere from eight to 14 months. During part of this time, nothing can be distributed or sold without court and/or executor approval. If your family needs money to live on, they must request a distribution, which could be denied.

Your family has limited privacy. Probate is a public process, so any “interested party” can see what you owned and who you owed. The process invites disgruntled heirs to contest your will and can expose your family to unscrupulous solicitors.

Your family has no control. The probate rules and procedures determine the cost, how long it will take, and what information is made public.

Doesn't joint ownership avoid Probate?

Not really — it usually just postpones it. With most jointly owned assets, when one owner dies, full ownership does transfer to the surviving owner without probate. But if that owner dies without adding a new joint owner, or if both owners die at the same time, the asset must be probated before it can go to the heirs. Other problems may arise as well: when you add a co-owner, you lose control; your chances of being named in a lawsuit and of losing the asset to a creditor of the joint owner; potential gift and/or income tax problems; and since a will does not control most jointly owned assets, it may favor one heir over another. With some assets, especially real estate, all owners must sign to sell or refinance. So if a co-owner becomes incapacitated, you could find yourself with a new “co-owner” - the court– even if the ill owner is your spouse.

Does a durable Power of Attorney prevent this?

A durable power of attorney lets you name someone to manage your financial affairs if you are unable to do so. However, some financial institution won’t honor it unless it’s on their form. And, it lacks the instructions of a trust as to how and what the other “power holder” is to do on your behalf. It is best used in conjunction with a living trust, and other planning documents, but risky when used alone.

If something big happens to me who has control?

In short, whoever you have named Successor Trustee takes control. If you and your spouse are co-trustees, either can act and have instant control if one becomes incapacitated or dies. If something happens to both of you, your handpicked Successor Trustee will step in if a corporate trustee is already your trustee or co-trustee, they will continue to manage your trust for you.

Is a Living Trust expensive?

Not when compared to all the costs of court oversight at incapacity and death. How much you pay will depend on how complicated your plan is.

Should I have a Memphis Attorney do my Trust?

Yes, but you need the right Memphis attorney. A local Memphis attorney who has considerable experience in estate tax law and living trusts will be able to give you valuable guidance and peace of mind that your trust is prepared properly and in compliance with your state’s laws.

If I have a Living Trust do I still need a Will?

Yes, you need a “Pour Over” Will that acts as a safety net if you forget to transfer an asset to your trust. When you pass away, the will “catches” the forgotten asset and sends it into your trust.

Are there other advantages to a Living Trust over a Will?

A Memphis living trust may be a better planning tool for those with estates which contain a large percentage of qualified retirement plan or life insurance proceeds.

What are the Benefits of a Memphis Living Trust?

  • Avoid Memphis probate at death, including ancillary probate if you own property in other states
  • Prevent Court control of assets at incapacity
  • Brings all your assets together under one plan
  • Provides maximum privacy
  • Provides quicker distribution of assets to beneficiaries
  • Allows assets to remain in trust until you want beneficiaries to inherit
  • Reduce or eliminate estate taxes
  • Inexpensive, easy to set up and maintain
  • Changed or cancelled at any time
  • Potentially more difficult to contest
  • Prevents court control of minors’ inheritance
  • Protect dependents with special needs
  • Prevents unintentional disinheriting, creditor issues and other problems of joint ownership
  • Professional management with corporate trustee
  • Provides peace of mind
If you would like more information or if you are in need of legal advice or legal assistance, please contact a Memphis Attorney.

4719 Spottswood
Memphis, TN 38117

PH: 901-347-0647
FX: 901-255-0745

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super lawyers badge Avvo tax badge Avvo probate badge Avvo estate planning badge The Law Offices of J. Vincent Perryman
4719 Spottswood, Memphis, TN 38117
Ph: 901-347-0647
Fx: 901-255-0745

Providing legal services for Memphis Tennessee and surrounding areas.
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