Lifetime Effort

The implementation of a “living trust” is likely to be more time consuming and far more tedious than would be the case with only a will.  The single most common defect in the implementation of a “living trust”, where the goal is to avoid probate, is the failure to transfer ownership and title of assets into the name of the trustee.  Simply creating the document will not work; the assets must be re-registered, re-titled or otherwise validly transferred to the trustee of the “living trust.”  Further, an individual needs to remain vigilant that all assets acquired after creation of the “living trust” are placed into the “living trust.”  Otherwise, those assets may pass through probate.

Lifetime Costs

While a living trust may have cost advantages relative to probate following death, a will generally has cost advantages relative to a “living trust” during an individual’s lifetime.  The costs associated with creating a living trust are generally more than the costs of creating a will.  Also, the need for a will is not eliminated as it is often necessary to dispose of assets at death that may not have been transferred to the “living trust” during the grantor’s lifetime.  In addition, there are costs incurred in properly transferring assets to the “living trust” during lifetime.  If the trustee is not the grantor or a member of the grantor’s family, trustee fees usually will be incurred if the “living trust” is funded.

Absence of Court Review

The administration of a “living trust” will not be supervised by any court.  While this avoids the paperwork burden and expense imposed by the probate process, persons creating a “living trust” should consider that the trustee they appoint will not be accountable to a judge for the honest and accurate distribution of assets unless a beneficiary were to bring a lawsuit.