Do You Need a Trust?

Not every family needs a trust. This brief article describes what a simple trust is, its advantages, and whether one is necessary for you.

The main purpose of a trust is to save your loved ones the headache of having to go through the probate court process when you pass away. Depending upon the size of your estate, there may also be tax reasons for establishing a trust. This brief article cannot address those issues. However, the probate process is a costly and time-consuming task.

A trust avoids this process because your trust name someone who will have full legal authority to carry out your wishes, as the trust directs them, after your passing. The person you appoint to perform this task is called your “successor trustee”. While you are alive, you can remain as the trust’s “trustee”.

This is the great advantage of a trust. Let me give you a simple example:

If you own title to your home, and only have a Will, then your loved ones are guaranteed that your estate will have to go through the probate process. Even though your Will clearly states, for example, that your children are to receive your home when you pass away, the title (deed) to your home still remains in your name when you die. Only you have the authority to transfer title, but you’re now deceased.

A title insurance company will need to guarantee that title properly passes from you to your children. However, the title company will not accept your Will as legal authority (anyone can forge a Will). The title company will require that your children take the Will to a judge and have the court sign an order that transfers title from you to your children. Eventually (one to two years later), the judge will sign the requested order.

With a trust, you will execute a new deed to your home. This new deed will transfer title from you, to you, as the trustee of your new trust. That new deed will be recorded in the County Recorder’s Office, and your new trust now owns title to the house.

When you pass away, the person you named as your “successor trustee” now has full legal authority to create a new deed that will transfer title from the trustee of your trust, to your children. There are a couple more steps involved, but this illustrates the value of a trust and how it can avoid the probate process.

If you do not own a house, or any other property that would otherwise require a judge to order the transfer of title when you pass away, then you probably do not need a trust.

Alternatives to a trust exist. In California, for example, bank accounts can include a POD (Pay on Death) form that allows you to name a beneficiary of your account. If you are the only named owner of that account, the money can be transferred to your named beneficiary (when you pass away) without any court involvement.

For many families, particularly those who do not own real property or require a transfer of title to property, a trust may not be needed.