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A Revocable Living Trust is a trust which:

  • You create during your lifetime.
  • Includes instructions for what happens to the assets and income from them while you are alive and upon your death.
  • Because the trust is "revocable," you can change the terms of the trust at any time while you are alive.

Revocable Living Trusts have become very popular tools for avoiding probate. Revocable Living Trusts can also be used to avoid guardianship proceedings if you become incapacitated and for other worthwhile purposes. Avoiding estate taxes is not one of them. Contrary to popular belief, assets in a Revocable Living Trust are included in your estate for estate tax purposes.

In no case should a trust of any kind be used in place of a Will.

For more information, see :

Edited by: 
Jerry Simon Chasen, Esq. 
Chasen & Associates, P.A. 
Miami, Florida

What Is A Revocable Living Trust?

  • A legal entity created under the law of the state in which it's set up known as a trust. A trust is like a paper bag in which you put assets. Instructions concerning what to do with the assets are written on the bag. A trustee is appointed to follow the instructions.
  • A revocable living trust is created while you are alive.
    • You can change the assets in the trust.
    • You can change the terms of the trust, including the identity of any and all beneficiaries.
    • You can revoke (terminate) the trust.
  • A trust continues to exist until it ends according to its terms. A trust can (and usually does) continue to exist beyond your death.
  • A trust is not subject to probate. To learn more, see Probate.

In What Situations Is A Revocable Living Trust Particularly Useful?

A condition which may become incapacitating

A Revocable Living Trust is one way of letting someone else manage your assets if you are no longer able to. However, this is not usually a primary reason to set up a living trust. If this is the main purpose for which you would establish such a trust, it may be wiser to execute a Durable Power of Attorney or appoint a Conservator. See Controlling Your Property While Incapacitated.

A substantial net worth

The wealthier you are, the more money you can save your heirs by avoiding probate. Probate costs are usually a percentage of your estate. See Estate Taxes, Probate.

If you want to disinherit one of your children or leave unequal amounts to your heirs

A living trust makes it difficult for an unhappy heir to contest your bequests.  If your estate goes through probate, your heirs will have the oportunity to appear in court and contest the terms of your will.   Plus any challenges become part of the public record.

If you own a business

If you own your own business, transferring ownership of the business to a Revocable Living Trust will allow the business to be managed by your trustee in the event of your incapacity or at your death. This helps preserve the value of the business.

Out-of-state property

If you own property out-of-state and leave it to someone in your Will, a separate probate process (called "ancillary probate") will be required in that state. Ancillary probate can raise the cost of distributing your property and eat into what your heirs receive. Ancillary probate can be avoided with the use of a living trust, and other probate-avoidance techniques such as the manner in which you hold title to an asset (for example, by joint tenancy with right of survivorship). See: How To Avoid Probate.

Anticipation of a Will contest

If there is a possibility that one of your heirs will contest what you want to do with your assets, it's more difficult to contest a trust than a Will. With a Will, as part of the probate procedure, the people who would receive your assets if there were no Will are informed of the submission of the document to probate. They're given an opportunity to challenge the document's validity at no cost to themselves. On the other hand, if your assets are in a trust, the same people would have to initiate a lawsuit at their own expense in order to attack the provisions of the trust. As an alternative to using a trust for this purpose, see How To Make Your Will Challenge Proof.

What Are The Advantages Of A Revocable Living Trust?

Protection from challenges

A trust is more difficult to challenge than a Will. (To learn more, see the section immediately above: "Anticipation of a Will contest"). This could be particularly important if your competency when you executed your Will could be questioned because of your health condition or because any ?rugs or treatments could be said to impair your competency. A higher degree of competency may be required in your state to create a trust than to execute a Will. For safety, you can also write a Will and provide what happens if a court finds that you were competent to write a Will, but not a trust.

Protect against incapacity

If the grantor/owner is incapacitated for any reason, the trust already names a successor trustee who can take over immediately. This eliminates the need for a guardian and any related disputes - at least with respect to the assets in the trust.

The elimination of a guardian means there will be no court supervision or interference with the administration of your assets in the event of your disability.


Because assets placed in a trust avoid probate, most states do not publicly disclose the details of a living trust. If you live in a state where the fact that a trust exists must be disclosed, that does not necessarily mean that its terms will be, so there is still an advantage of privacy.

According to the Journal Of Retirement Planning, Alaska, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Missouri and North Dakota all require public disclosure of a living trust and it is expected that more states will join this list. If this issue is of concern to you, check with an attorney to learn the law in your state. If your state has joined this list, please let us know by email to Survivorship A to Z.

Management by others

  • Someone else can be designated to manage the assets in the trust while you receive the income.
  • If you want to manage the assets in the trust yourself, you can provide that someone automatically becomes a replacement trustee to take over the trust's management if you become incapacitated.
  • You can also arrange in advance for the management of your property after your death, such as by having someone manage the assets of a minor until he or she is of age.


You get to see how the trust works and can continually make necessary adjustments. (Note: the adjustments have to be made with the same formality as is required for the creation of a trust.)

Ease of passing assets

Under a trust arrangement, your beneficiaries may receive assets more quickly than through a Will that has to go through probate. Provision can also be made in your Will that any assets not in the trust be "poured over" into the trust on the grantor's death. The trust can also be named beneficiary of a life insurance policy, retirement plan and contractual arrangements.

Pass assets to heirs in a manner not permitted in a Will

For example, you can leave money to a minor which doesn't actually pass to the minor until he or she reaches a certain age.

Use of out-of-state person to distribute your assets

If you want to use a person who lives in another state to administer your estate, it is usually easier if you use a trust than if you name the person as executor of your Will. You choose a trustee on your own, while your choice of personal representative/executor is subject to approval by the probate court. Probate judges tend to prefer residents of their state. In some cases, judges restrict appointment of a non-relative to state residents.

Spousal disinheritance

A living trust may be a way to disinherit your spouse. Consult your attorney.

Courts are not as involved as in the administration of a probate estate.

Do not expect a Revocable Living Trust to reduce or eliminate estate or income taxes. Because you retain control over the assets placed in a Revocable Living Trust, those assets are still part of your taxable estate.

The income that the trust earns is also taxable income to you, even if somebody else actually receives the income.

What Are The Disadvantages Of A Revocable Living Trust?

While living trusts can have all the advantages described in the above section, they may not be all they're often said to be. Consider the following:

Set-up costs

A living trust is generally more expensive to set-up than a Will. The expenses of a trust include both legal fees to establish the trust and the costs of transferring title to property to the trust. While there are self-help books and software programs that will tell you how to establish a trust on your own, we do not recommend a do-it-yourself approach in this situation. Mistakes can be expensive to correct while the trust is revocable, and cannot be fixed after your demise.

Ongoing costs

  • If another person is named as trustee, there may be a trustee fee to pay.
  • Any new assets acquired will need to be titled in the name of the trust.
  • At the grantor's death, the trust will need to obtain a separate tax identification number and file a separate tax return.


Conflicts can arise between the beneficiaries and the trustee.

No protection from creditors

Contrary to what trust salespeople sometimes claim:

  • Many courts have ruled that assets transferred to a revocable living trust are generally not shielded from past, present or future creditors.
  • State laws that place a time limit for creditors to make a claim against your assets being passed by a Will generally do not apply to living trusts.

If you claim bankruptcy

Depending on the state in which your property is located, putting your home into a living trust might jeopardize an exemption that allows you to keep a residence (a homestead exemption) even after bankruptcy.


When a Will is probated, the process of distributing your assets in accordance with what you wanted is supervised by a court. There is no such supervision with a trust.

If I Have A Living Trust, Do I Still Need A Will?


A trust only covers the property that is transferred to it. Whatever is left will still be subject to probate whether you have a Will or your property passes under your state's intestacy law's (the laws that provide what happens if you don't have a Will).

New property that you might acquire but which is not yet transferred to the trust, or any property not included in the trust, still needs to be distributed by your Will.

Additionally, if you have minor children, you can use your Will to name a guardian. You can't do this in a trust. To learn more, see How To Choose A Guardian For Your Children.

Note: The type of Will generally used with a living trust is a "pourover will." The trust is the primary estate planning document. The Will "pours over" to the trust any assets that were not previously transferred to it.

Edited by:
Jerry Simon Chasen, Esq.
Chasen & Associates, P.A.
Miami, Florida