Living Trust

  1. Living Trust
  2. Advantages of a Living Trust
  3. Disadvantage of a Living Trust
A living trust is a trust that is funded with assets and that may be amended or revoked by the person creating the trust. The person creating the trust, often called the settlor or the grantor typically retains all the benefits to the property placed into the trust. The grantor can also be the trustee in Ohio, although the grantor's spouse or a trust company also often serves as trustee. The terms of a living trust are established in a written agreement signed by the grantor and the trustee. A living trust can be funded with bank accounts, stocks and bonds, a home and other assets. The terms of the living trust should provide for the disposition of the property in the trust both during the life and following the death of the grantor.

Purpose of a Living Trust
A living trust may have many purposes. A common goal is to avoid probate. Assets within a living trust will generally not be subject to the jurisdiction of the probate court, either while the grantor is living or following the grantor's death. Assets owned under an individual name and not contractually payable on death will generally be subject to probate. Additionally, assets that are owned jointly with others with rights of survivorship will pass upon death to the survivor by operation of law and will not be probate assets. However, care should be exercised before creating a joint account, particularly with someone other than a spouse, because the joint tenant will have rights in the joint property immediately on creation. Payable-on-death accounts and any assets that are contractually payable to beneficiaries, such as life insurance or pension benefits, will also avoid probate. Transfer-on-death registration for securities will also avoid probate.

Setting Up a Living Trust
If you decide that the use of a living trust may be right for you or if you are uncertain whether a living trust would be beneficial, it would be wise to consult with an attorney who is knowledgeable in probate, estate planning and tax matters. After obtaining information from you concerning the nature, title and value of your assets and liabilities, and following discussions with you concerning your goals for the use of your property during lifetime and following death, your attorney will be able to advise you in advance of the costs for consultation and, following the consultation, provide you with an estimate of legal and other expenses involved with the drafting and implementation of a living trust. The drafting of a living trust, like most other legal documents, requires professional judgment if the best results are to be ensured. A lawyer can help you avoid the pitfalls and help you choose the legal instruments and plan best suited for your situation.

Note: This fact sheet is intended to be reproduced by lawyers and others for free distribution to the public. It may not be reproduced commercially for sale at a profit.