Pros and Cons of Setting up a Living Trust

Dealing with a lengthy probate process after the death of a loved one is something many families wish to avoid if possible. The thought of going to probate court and appointing an executor can seem daunting during a stressful time. This is why some people choose to set up a living trust in order to avoid a long, costly probate process upon the event of their death. If you’re considering a living trust for your estate, here are a few things you should know going forward.

What Is a Living Trust?

Basically, a living trust allows the trustee to grant the title to their property to someone else while the person is still alive. The person who receives property in trust is called the beneficiary. Living trusts are also called “inter vivos” trusts, and the term refers to any trust that is established while the person whose property is in question is still living. A person can even become the trustee of their own living trust. Trusts are created with a document called a Declaration of Trust, which is similar to a will.


Living trusts make it easy to transfer assets to heirs without waiting for a probate court’s approval. They can also reduce estate taxes and make it easier to manage your property in the long term. The person appointed to handle the trust transfers ownership to the beneficiary upon the death of the trustee, avoiding lawyers and court fees. This allows more of the property to pass directly to heirs than would come to them during the traditional probate process. Since this process can take months and can often take up as much as 5% of the estate’s value in legal fees, many property holders strive to avoid probate if possible.

The process is also fairly simple, and many people are able to set up living trusts on their own without the help of an estate planning attorney. Of course, that depends on the complexity and size of your estate. Always ask a qualified  New York probate attorney if you have questions regarding your living trust.


If you decide to use the services of a probate lawyer when setting up your trust, you will have to pay the attorney’s fees. Trusts also do not protect property from creditors, who can still go after property held in trust if they win a lawsuit against you. Lawful debts must be paid through the property, even if it has already passed to the beneficiary. You will probably be required to file additional paperwork along with the trust when setting it up, for example, a new deed to your house if you intend to make it part of your trust.

Setting up a living trust is an important decision you can make for your family’s future. For more information about living trusts and probate, contact your local Queens probate lawyer, Richard Cary Spivack, for a consultation today. Take the guesswork out of estate planning and get the advice of an estate planning attorney you can trust.