Sept. 19, 2023
Will My Testamentary Trust Avoid Probate? (Episode #289)
If you are going to have a trust as part of your estate plan, be sure that you understand important differences between a Testamentary Trust and a Living Trust.
If you are going to have a trust as part of your estate plan, be sure that you understand important differences between a Testamentary Trust and a Living Trust.
WEBVTT
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Well, good afternoon, Michiganders.
It is Tuesday, September nineteen, twenty
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00:00:37.039 --> 00:00:42.439
twenty three, and of course this
is Tuesday with Tom, Michigan's only weekly
3
00:00:42.520 --> 00:00:47.719
podcast where we answer your questions about
a state planning and a state settlement in
4
00:00:47.799 --> 00:00:52.479
Michigan, and we don't send you
a bill. As always, I'm your
5
00:00:52.479 --> 00:00:58.240
host, Tom Doyle, estate planning
attorney, lifelong Michigan resident, an ambassador
6
00:00:58.399 --> 00:01:03.239
for all things good in this great
state of Michigan. Welcome, welcome,
7
00:01:03.640 --> 00:01:14.519
welcome to today's program. September nineteenth. I'm looking at my calendar and I
8
00:01:14.760 --> 00:01:22.560
see that fall is only a few
days away. September twenty third is when
9
00:01:22.680 --> 00:01:26.640
fall is going to begin this year. It just seems like yesterday. I
10
00:01:26.680 --> 00:01:33.760
don't know about you, but it
seems like yesterday that we were already looking
11
00:01:33.959 --> 00:01:41.879
forward to summer beginning. Well,
let's review last week's episode A State Planning.
12
00:01:41.959 --> 00:01:47.840
Questions that might make you squirm.
Sometimes when we're in the process of
13
00:01:47.879 --> 00:01:53.879
talking to our clients and asking them
questions, the questions might be very uncomfortable
14
00:01:55.040 --> 00:02:00.280
for them to answer. But we're
not asking them to make you squirm.
15
00:02:00.359 --> 00:02:05.519
We're simply asking them to make sure
that we have all of the appropriate information
16
00:02:05.799 --> 00:02:12.080
in developing an estate plan. So
if that's something that you're concerned about experiencing,
17
00:02:12.680 --> 00:02:21.280
I would invite you to listen to
last week's episode today's show, Will
18
00:02:21.319 --> 00:02:28.520
my Testamentary Trust Avoid Probate? But
please remember that what I'm about to discuss
19
00:02:29.319 --> 00:02:35.560
in the program is for educational purposes
only. It is not intended to be
20
00:02:36.439 --> 00:02:40.199
legal advice. As always, you
need to work with your attorney to determine
21
00:02:40.240 --> 00:02:58.840
what is appropriate for you and your
estate plan. Will my testamentary trust avoid
22
00:02:59.520 --> 00:03:04.800
Probate? Well, let's start with
a little discussion about what a testamentary trust
23
00:03:04.919 --> 00:03:12.400
is. Essentially, a testamentary trust
is one that is created inside of your
24
00:03:12.439 --> 00:03:15.159
will, So if you were to
read through your will, you'll have some
25
00:03:15.280 --> 00:03:23.479
provisions in there where a trust is
created inside of the will itself. Let's
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00:03:23.520 --> 00:03:29.840
contrast that with what's called a living
trust. A living trust is a standalone
27
00:03:29.919 --> 00:03:35.439
document. It is not part of
your will. It is a totally separate,
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00:03:36.039 --> 00:03:39.919
standalone documents. Now, with either
of them, whether it's a testamentary
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00:03:40.000 --> 00:03:46.080
trust or a living trust, you
will still have control of your assets during
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00:03:46.080 --> 00:03:50.120
your lifetime. So under either of
them, in most cases, now there
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00:03:50.199 --> 00:03:53.759
might be a reason a particular type
of living trust, which would be an
32
00:03:53.800 --> 00:04:00.120
irrevocable trust. Maybe it's being created
for perhaps a asset tection strategy, or
33
00:04:00.159 --> 00:04:06.439
maybe your medicaid planning strategy. But
the normal living trust that most people have,
34
00:04:08.360 --> 00:04:13.840
you still have control of your assets
during your lifetime. Under either you
35
00:04:13.879 --> 00:04:19.240
can provide for the distribution of your
estate upon your death or continued management of
36
00:04:19.319 --> 00:04:25.040
assets after your death. So,
for example, you might have the desire
37
00:04:25.160 --> 00:04:30.959
to have your estate managed for the
benefit of perhaps children or grandchildren or entailed
38
00:04:31.000 --> 00:04:38.600
they churn twenty five. That can
be done on either under either the testamentary
39
00:04:38.639 --> 00:04:45.000
trust or the living trust. Also, both of them are going to become
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00:04:45.279 --> 00:04:51.279
irrevocable upon your death, so once
you die, you cannot They survivor of
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00:04:51.319 --> 00:04:58.160
you cannot change the terms of either
of those trusts. Now caveat on that
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00:04:58.240 --> 00:05:03.839
though, if it's a joint living
trust, it normally will only become irrevocable
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00:05:03.879 --> 00:05:09.079
upon the death of the second person. So what's the real difference. Well,
44
00:05:09.800 --> 00:05:16.160
think about this. The living trust
becomes effective during your lifetime, but
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00:05:16.959 --> 00:05:25.680
the testamentary trust, because it is
inside your will, only becomes effective when
46
00:05:25.720 --> 00:05:31.279
your will becomes effective. Now,
if you listen to previous episodes of this
47
00:05:31.319 --> 00:05:41.199
podcast, you would know that a
will only becomes effective when three things happen.
48
00:05:42.199 --> 00:05:50.000
One you die, two a probate
estate is open for you, and
49
00:05:50.360 --> 00:06:01.360
three the will is admitted for probate. Thus, your testamentary trust only becomes
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00:06:01.480 --> 00:06:09.560
effective once it is admitted to probate, which means, in answer to our
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00:06:09.680 --> 00:06:17.240
question, will my testamentary trust avoid
probate, the answer is no again,
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00:06:17.279 --> 00:06:27.399
because the testamentary trust is only going
to become effective once your probate estate is
53
00:06:27.480 --> 00:06:32.079
open for you. What does that
mean. Well, one thing that means
54
00:06:32.360 --> 00:06:39.040
is obviously a probate estate has to
be opened. Another thing that's going to
55
00:06:39.079 --> 00:06:42.759
mean is that all of the assets
that are going to be managed through that
56
00:06:42.839 --> 00:06:48.279
testamentary trust are now going through probate. So if one of your state planning
57
00:06:48.279 --> 00:06:51.160
goals, and that's what we're really
looking at, what are you looking to
58
00:06:51.199 --> 00:06:57.319
accomplish with your estate plan? But
if one of your state planning goals is
59
00:06:57.360 --> 00:07:05.480
to avoid probate, then the testamentary
trust is not going to accomplish that goal.
60
00:07:05.560 --> 00:07:09.959
Now, when I began practicing law
over forty years ago, now,
61
00:07:10.800 --> 00:07:16.720
it was fairly common to include a
testamentary trust inside a will as a way
62
00:07:16.759 --> 00:07:24.319
to manage assets after death for minor
children, and perhaps if you have a
63
00:07:24.439 --> 00:07:27.879
very old will, and every now
and then clients will come to us with
64
00:07:28.680 --> 00:07:32.360
very old wills that have not been
updated. If you have a very old
65
00:07:32.399 --> 00:07:38.800
will, it's possible that it might
also include a testamentary trust for children.
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00:07:38.920 --> 00:07:46.199
So if you have that in your
will, understand that is not a document
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00:07:46.680 --> 00:07:53.920
that is going to avoid probate upon
your death. Now, over the last
68
00:07:54.000 --> 00:08:00.319
forty years, amongst many changes in
the estate planning world, most clients today
69
00:08:01.120 --> 00:08:07.759
have moved to the having a living
trust since not only does it provide a
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00:08:07.759 --> 00:08:11.160
way to manage assets, which is
one of the goals, but it also
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has the additional benefit that it avoids
probate, which is why the living trust
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has become the norm where most clients
don't have testamentary trust created today. Another
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consideration today, if you think about
it, having that trust inside your will
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is essentially, as far as drafting
is concerned, not really any different than
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having that separate living trust created for
you, which generally means it's going to
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cost the same. So having a
will with a living trust inside it generally
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is likely going to cost you the
same as having a living trust created outside
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as a standalone document. And then
when you factor in the cost of probating
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your estate and you add that to
the cost of having the testamentary trust created
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for you, it is oftentimes a
much more expensive estate plan. So for
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a lot of clients, they will
also look at having the living trust created
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because it can be less expensive overall
than having the testamentary trust and then having
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your estate go through probate. A
couple other things to think about. Many
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clients will use a living trust as
a way to protect privacy. If you've
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gone to any of the seminars or
tended the webinars at both amand and I
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present, you'll know that we talk
about that's one of the concerns that clients
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oftentime have that causes them to want
to avoid probate is to protect privacy.
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00:10:01.399 --> 00:10:07.399
Well, just like a will will
not protect your privacy, a testamentary trust
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that is inside that will also doesn't
protect your privacy as will a living trust.
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And finally, another goal that clients
often have when they're looking at putting
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together their estate plan, as they're
looking for after death, the shortest period
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of time that it will take to
settle their estate so that their loved ones
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can have the estate sooner rate rather
than later. Well, having the testamentary
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trust can end up taking longer than
it would to settle in a state with
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a living trust, because again that
testamentary trust is going to require a probate
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estate to be open. So again, in answer to the question, will
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might testamentary trust avoid probate? Answer
no. If you have any further questions
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though about whether or not your current
will might actually have a testamentary trust,
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it's certainly something that we can read
through and tell you that or any other
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concerns about testamentary trust. Certainly that
those are questions at amand and I are
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able and would be willing to answer
for you, And of course it should
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go without saying. But amand And, as I tell you every week,
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we would be honored to have the
opportunity to help you protect your loved ones
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by either putting together in a state
plan for you, perhaps amending a plan
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that you already have, or assisting
you was settling a loved ones state.
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Simply head on over to our website
Doyle LAWPC dot com. There you will
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00:12:28.200 --> 00:12:33.720
find information on how you can schedule
a consultation with us. It could be
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00:12:33.759 --> 00:12:39.120
an in person consultation at our New
East Lansing office, or depending upon where
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00:12:39.159 --> 00:12:43.240
you are stayed in the Michigan,
it can be a virtual consultation that can
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00:12:43.279 --> 00:12:52.200
be done via zoom or telephone.
Additionally, you are, excuse me,
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you're going to find information at the
website about our legal store. Perhaps all
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00:12:56.120 --> 00:13:03.080
you need is excuse me, an
individu dual document. Maybe all you need
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00:13:03.159 --> 00:13:07.399
is an updated healthcare power of attorney. You will see that through the Legal
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00:13:07.480 --> 00:13:13.600
Store you will have the ability to
order individual documents. You can also order
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00:13:13.639 --> 00:13:20.159
them through our Facebook page as well. So again I encourage you visit doilapc
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00:13:20.360 --> 00:13:26.080
dot com for more information about the
services that we provide and to schedule a
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00:13:26.200 --> 00:13:43.279
consultation. Today. Well that's going
to be it for today's show. Though,
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00:13:43.320 --> 00:13:48.080
as always, if you have a
comment about the program, a topic
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00:13:48.200 --> 00:13:50.639
that you'd like to have me discuss. Our questions that you'd like to have
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00:13:50.759 --> 00:13:56.279
answer. This is a format to
get answers to those questions, So send
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00:13:56.320 --> 00:14:03.159
me an email Tom at two with
Tom dot com. Please follow us on
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00:14:03.200 --> 00:14:09.840
Facebook. That would be Tuesday with
Tom follow the office as well at Doyle
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00:14:09.919 --> 00:14:16.159
Law PC. Remember too, Tuesday
with Tom is available on Apple Podcast,
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00:14:16.360 --> 00:14:22.360
Spotify, Google Podcast, iHeartRadio,
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Probably anywhere that you would normally listen
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00:14:28.279 --> 00:14:33.720
able to listen to Tuesday with Tom
and you can always ask your smart speaker
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00:14:35.120 --> 00:14:41.159
to play Tuesday with Ta. Well, thanks again for spending some of your
128
00:14:41.159 --> 00:14:46.600
time with us today and as always, I hope that you have an awesome
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00:14:46.720 --> 00:14:58.000
day and an awesome week in Michigan. Stay safe. Tuesday with Tom has
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00:14:58.000 --> 00:15:01.360
been brought to you by the estate
Planning at Journeys at Doyle Law PC.
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00:15:01.639 --> 00:15:05.200
To learn how we can help you
with your estate plan or was settling a
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00:15:05.279 --> 00:15:09.879
loved ones estate, please call us
today at five one seven three two three
133
00:15:11.039 --> 00:15:15.879
seven three six six. That's five
one seven three two three seven three six six
1
00:00:30.640 --> 00:00:36.920
Well, good afternoon, Michiganders.
It is Tuesday, September nineteen, twenty
2
00:00:37.039 --> 00:00:42.439
twenty three, and of course this
is Tuesday with Tom, Michigan's only weekly
3
00:00:42.520 --> 00:00:47.719
podcast where we answer your questions about
a state planning and a state settlement in
4
00:00:47.799 --> 00:00:52.479
Michigan, and we don't send you
a bill. As always, I'm your
5
00:00:52.479 --> 00:00:58.240
host, Tom Doyle, estate planning
attorney, lifelong Michigan resident, an ambassador
6
00:00:58.399 --> 00:01:03.239
for all things good in this great
state of Michigan. Welcome, welcome,
7
00:01:03.640 --> 00:01:14.519
welcome to today's program. September nineteenth. I'm looking at my calendar and I
8
00:01:14.760 --> 00:01:22.560
see that fall is only a few
days away. September twenty third is when
9
00:01:22.680 --> 00:01:26.640
fall is going to begin this year. It just seems like yesterday. I
10
00:01:26.680 --> 00:01:33.760
don't know about you, but it
seems like yesterday that we were already looking
11
00:01:33.959 --> 00:01:41.879
forward to summer beginning. Well,
let's review last week's episode A State Planning.
12
00:01:41.959 --> 00:01:47.840
Questions that might make you squirm.
Sometimes when we're in the process of
13
00:01:47.879 --> 00:01:53.879
talking to our clients and asking them
questions, the questions might be very uncomfortable
14
00:01:55.040 --> 00:02:00.280
for them to answer. But we're
not asking them to make you squirm.
15
00:02:00.359 --> 00:02:05.519
We're simply asking them to make sure
that we have all of the appropriate information
16
00:02:05.799 --> 00:02:12.080
in developing an estate plan. So
if that's something that you're concerned about experiencing,
17
00:02:12.680 --> 00:02:21.280
I would invite you to listen to
last week's episode today's show, Will
18
00:02:21.319 --> 00:02:28.520
my Testamentary Trust Avoid Probate? But
please remember that what I'm about to discuss
19
00:02:29.319 --> 00:02:35.560
in the program is for educational purposes
only. It is not intended to be
20
00:02:36.439 --> 00:02:40.199
legal advice. As always, you
need to work with your attorney to determine
21
00:02:40.240 --> 00:02:58.840
what is appropriate for you and your
estate plan. Will my testamentary trust avoid
22
00:02:59.520 --> 00:03:04.800
Probate? Well, let's start with
a little discussion about what a testamentary trust
23
00:03:04.919 --> 00:03:12.400
is. Essentially, a testamentary trust
is one that is created inside of your
24
00:03:12.439 --> 00:03:15.159
will, So if you were to
read through your will, you'll have some
25
00:03:15.280 --> 00:03:23.479
provisions in there where a trust is
created inside of the will itself. Let's
26
00:03:23.520 --> 00:03:29.840
contrast that with what's called a living
trust. A living trust is a standalone
27
00:03:29.919 --> 00:03:35.439
document. It is not part of
your will. It is a totally separate,
28
00:03:36.039 --> 00:03:39.919
standalone documents. Now, with either
of them, whether it's a testamentary
29
00:03:40.000 --> 00:03:46.080
trust or a living trust, you
will still have control of your assets during
30
00:03:46.080 --> 00:03:50.120
your lifetime. So under either of
them, in most cases, now there
31
00:03:50.199 --> 00:03:53.759
might be a reason a particular type
of living trust, which would be an
32
00:03:53.800 --> 00:04:00.120
irrevocable trust. Maybe it's being created
for perhaps a asset tection strategy, or
33
00:04:00.159 --> 00:04:06.439
maybe your medicaid planning strategy. But
the normal living trust that most people have,
34
00:04:08.360 --> 00:04:13.840
you still have control of your assets
during your lifetime. Under either you
35
00:04:13.879 --> 00:04:19.240
can provide for the distribution of your
estate upon your death or continued management of
36
00:04:19.319 --> 00:04:25.040
assets after your death. So,
for example, you might have the desire
37
00:04:25.160 --> 00:04:30.959
to have your estate managed for the
benefit of perhaps children or grandchildren or entailed
38
00:04:31.000 --> 00:04:38.600
they churn twenty five. That can
be done on either under either the testamentary
39
00:04:38.639 --> 00:04:45.000
trust or the living trust. Also, both of them are going to become
40
00:04:45.279 --> 00:04:51.279
irrevocable upon your death, so once
you die, you cannot They survivor of
41
00:04:51.319 --> 00:04:58.160
you cannot change the terms of either
of those trusts. Now caveat on that
42
00:04:58.240 --> 00:05:03.839
though, if it's a joint living
trust, it normally will only become irrevocable
43
00:05:03.879 --> 00:05:09.079
upon the death of the second person. So what's the real difference. Well,
44
00:05:09.800 --> 00:05:16.160
think about this. The living trust
becomes effective during your lifetime, but
45
00:05:16.959 --> 00:05:25.680
the testamentary trust, because it is
inside your will, only becomes effective when
46
00:05:25.720 --> 00:05:31.279
your will becomes effective. Now,
if you listen to previous episodes of this
47
00:05:31.319 --> 00:05:41.199
podcast, you would know that a
will only becomes effective when three things happen.
48
00:05:42.199 --> 00:05:50.000
One you die, two a probate
estate is open for you, and
49
00:05:50.360 --> 00:06:01.360
three the will is admitted for probate. Thus, your testamentary trust only becomes
50
00:06:01.480 --> 00:06:09.560
effective once it is admitted to probate, which means, in answer to our
51
00:06:09.680 --> 00:06:17.240
question, will my testamentary trust avoid
probate, the answer is no again,
52
00:06:17.279 --> 00:06:27.399
because the testamentary trust is only going
to become effective once your probate estate is
53
00:06:27.480 --> 00:06:32.079
open for you. What does that
mean. Well, one thing that means
54
00:06:32.360 --> 00:06:39.040
is obviously a probate estate has to
be opened. Another thing that's going to
55
00:06:39.079 --> 00:06:42.759
mean is that all of the assets
that are going to be managed through that
56
00:06:42.839 --> 00:06:48.279
testamentary trust are now going through probate. So if one of your state planning
57
00:06:48.279 --> 00:06:51.160
goals, and that's what we're really
looking at, what are you looking to
58
00:06:51.199 --> 00:06:57.319
accomplish with your estate plan? But
if one of your state planning goals is
59
00:06:57.360 --> 00:07:05.480
to avoid probate, then the testamentary
trust is not going to accomplish that goal.
60
00:07:05.560 --> 00:07:09.959
Now, when I began practicing law
over forty years ago, now,
61
00:07:10.800 --> 00:07:16.720
it was fairly common to include a
testamentary trust inside a will as a way
62
00:07:16.759 --> 00:07:24.319
to manage assets after death for minor
children, and perhaps if you have a
63
00:07:24.439 --> 00:07:27.879
very old will, and every now
and then clients will come to us with
64
00:07:28.680 --> 00:07:32.360
very old wills that have not been
updated. If you have a very old
65
00:07:32.399 --> 00:07:38.800
will, it's possible that it might
also include a testamentary trust for children.
66
00:07:38.920 --> 00:07:46.199
So if you have that in your
will, understand that is not a document
67
00:07:46.680 --> 00:07:53.920
that is going to avoid probate upon
your death. Now, over the last
68
00:07:54.000 --> 00:08:00.319
forty years, amongst many changes in
the estate planning world, most clients today
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have moved to the having a living
trust since not only does it provide a
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way to manage assets, which is
one of the goals, but it also
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has the additional benefit that it avoids
probate, which is why the living trust
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has become the norm where most clients
don't have testamentary trust created today. Another
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consideration today, if you think about
it, having that trust inside your will
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is essentially, as far as drafting
is concerned, not really any different than
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having that separate living trust created for
you, which generally means it's going to
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cost the same. So having a
will with a living trust inside it generally
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is likely going to cost you the
same as having a living trust created outside
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as a standalone document. And then
when you factor in the cost of probating
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your estate and you add that to
the cost of having the testamentary trust created
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for you, it is oftentimes a
much more expensive estate plan. So for
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a lot of clients, they will
also look at having the living trust created
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because it can be less expensive overall
than having the testamentary trust and then having
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your estate go through probate. A
couple other things to think about. Many
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clients will use a living trust as
a way to protect privacy. If you've
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gone to any of the seminars or
tended the webinars at both amand and I
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present, you'll know that we talk
about that's one of the concerns that clients
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oftentime have that causes them to want
to avoid probate is to protect privacy.
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Well, just like a will will
not protect your privacy, a testamentary trust
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that is inside that will also doesn't
protect your privacy as will a living trust.
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And finally, another goal that clients
often have when they're looking at putting
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together their estate plan, as they're
looking for after death, the shortest period
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of time that it will take to
settle their estate so that their loved ones
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can have the estate sooner rate rather
than later. Well, having the testamentary
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trust can end up taking longer than
it would to settle in a state with
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a living trust, because again that
testamentary trust is going to require a probate
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estate to be open. So again, in answer to the question, will
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might testamentary trust avoid probate? Answer
no. If you have any further questions
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though about whether or not your current
will might actually have a testamentary trust,
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it's certainly something that we can read
through and tell you that or any other
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concerns about testamentary trust. Certainly that
those are questions at amand and I are
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able and would be willing to answer
for you, And of course it should
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go without saying. But amand And, as I tell you every week,
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we would be honored to have the
opportunity to help you protect your loved ones
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by either putting together in a state
plan for you, perhaps amending a plan
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that you already have, or assisting
you was settling a loved ones state.
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Simply head on over to our website
Doyle LAWPC dot com. There you will
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find information on how you can schedule
a consultation with us. It could be
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an in person consultation at our New
East Lansing office, or depending upon where
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you are stayed in the Michigan,
it can be a virtual consultation that can
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be done via zoom or telephone.
Additionally, you are, excuse me,
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you're going to find information at the
website about our legal store. Perhaps all
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you need is excuse me, an
individu dual document. Maybe all you need
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00:13:03.159 --> 00:13:07.399
is an updated healthcare power of attorney. You will see that through the Legal
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Store you will have the ability to
order individual documents. You can also order
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them through our Facebook page as well. So again I encourage you visit doilapc
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dot com for more information about the
services that we provide and to schedule a
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consultation. Today. Well that's going
to be it for today's show. Though,
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as always, if you have a
comment about the program, a topic
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that you'd like to have me discuss. Our questions that you'd like to have
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answer. This is a format to
get answers to those questions, So send
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me an email Tom at two with
Tom dot com. Please follow us on
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Facebook. That would be Tuesday with
Tom follow the office as well at Doyle
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00:14:09.919 --> 00:14:16.159
Law PC. Remember too, Tuesday
with Tom is available on Apple Podcast,
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00:14:16.360 --> 00:14:22.360
Spotify, Google Podcast, iHeartRadio,
Spreaker and many other podcast services out there.
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Probably anywhere that you would normally listen
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able to listen to Tuesday with Tom
and you can always ask your smart speaker
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to play Tuesday with Ta. Well, thanks again for spending some of your
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time with us today and as always, I hope that you have an awesome
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day and an awesome week in Michigan. Stay safe. Tuesday with Tom has
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been brought to you by the estate
Planning at Journeys at Doyle Law PC.
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To learn how we can help you
with your estate plan or was settling a
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loved ones estate, please call us
today at five one seven three two three
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00:15:11.039 --> 00:15:15.879
seven three six six. That's five
one seven three two three seven three six six
