A living trust never needs to be filed in court, either before or after your death. The probate court is not involved in the supervision of your trustee, the person you name on the trust document to handle the distribution of trust assets. The trustee simply follows the instructions he wrote on the trust document, without obtaining permission or approval from the court. Most states require that a last will and will be filed with the appropriate state court when the person dies.
When that happens, the will becomes a public record for anyone to read. Not having to file the trust with the court is one of the greatest benefits of a trust, because it makes the agreement a private matter between the successor trustees and the beneficiaries of the trust. When someone creates a living trust, they are usually the only one who has access to it. They are never entered in the public register, even after someone has died.
This means that the court doesn't know what is included in any trust, leaving someone with few options to find a loved one's missing documents. The drafting of your trust must be done by an attorney trained in the area of tax and trust law. It is important that you look for a law firm with experience in creating trusts in life. After all, your trust will be the document that manages and disposes of all your hard-earned wealth.
For a living trust to enter into force, title to the grantor's assets must be transferred to the trust. For example, title to any bank account, share certificate or real estate owned by the grantor must be transferred to the trust. Contrary to the impression created by many living trust sellers, the grantor must take affirmative action to transfer assets and fund the trust. The mere execution of the trust in life will not cause the trust to be financed.
When a will pours over assets into a revocable trust and a probate proceeding is required, the trust document is usually filed with the court clerk, but does not become part of the public record. While a trust may contain tax-saving provisions that come into effect at death, the same tax savings may be contained in the grantor's will rather than in a living trust. Upon the grantor's death, the trust will become irrevocable and the trust instrument will provide for the distribution of trust assets in a manner similar to a will. Instead, the trust counsel determines who is entitled to receive a copy of the document, even if state law does not require it.
An additional will is needed to distribute any property that is acquired in the grantor's name after the living trust was established, or any property that was not transferred to the trust in the first place. If you create a new trust and find the old one, the trust with the most recent date will replace the others. Some states, but not New York, have more simplified procedures for funding a revocable trust and may even allow certain assets to be transferred by simple recitation in the trust document. It is typical for people who know what it means to have a court-appointed guardian to choose to have a durable power of attorney and health care power of attorney, as long as they know people they would trust to perform those roles.
Please note that if someone challenges the trust in court, the trust document will inevitably become a public record, as a copy of it will be attached to the court plea. For the reasons explained below, the grantor may choose to finance the trust for the life of some or all of the grantor's assets or, alternatively, the trust may remain essentially unfunded until the grantor's death. The person creating the trust (the grantor) appoints a person who will act as trustee and follow the terms of the trust after the grantor's death. Problems may arise when assets were intended to be transferred to the trust, but proper formalities were not observed; if not effectively transferred to the trust during life, those assets would generally remain as part of the estate estate and would pass under the grantor's will.
Each living trust has a trustee, who is responsible for overseeing trust assets and ensuring that assets are passed on to trust beneficiaries in accordance with trust instructions. If you decide to hire an attorney to help you create your trust, the cost will depend on the fees charged by the lawyer you choose. Instead, after having spent large sums of money and being assured that they would receive free legal aid, seniors are told for the first time, at the time they receive their living trust documents, to consult their own lawyers. .