Are there drawbacks to setting up a living Will to avoid probate court delays?

This is after the death of parents. All children/beneficiaries live out of state so ideally the home could be sold and funds distributed to heirs quickly.

Asked on March 20, 2015 under Estate Planning, Ohio

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

I think you mean a "living trust," since a living will is a document stating what you should be done medically if you are impaired and cannot make your own medical decisions.

This is a very complicated question, with significant tax implications that should be discussed with a tax attorney, trusts and estates lawyer, and/or CPA. Without getting into those issues, which will be particular to you and the assets in questions. Without getting into those issues, the biggest question is this: are you willing to potentially give up control/ownership of the assets while the you are still alive? For maximum benefits in estate planning (including tax benefits), the assets should be placed in an irrevocable trust, which means that they no longer belong and cannot be solely, at will, controlled by the person making the trust. That may be too high a price to pay for avoiding probate.


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