Living Trust: Avoiding Arizona’s Probate Process
We have written elsewhere about Arizona’s probate process. Probate is a legal process in which the court appoints a personal representative of the estate of a person who has died. That personal representative is responsible for making an inventory of all of the deceased’s assets whose ownership did not automatically transfer when he or she died, paying any last expenses the deceased might have, filing the last tax returns of the deceased and paying any required taxes, and distributing the remaining assets to the heirs of the deceased.
Probate can be a complicated and time-consuming process. However, it is not always necessary when a person dies. If someone dies with no assets or if all assets automatically transfer ownership at death, so that no assets remain titled in the name of the deceased, then a probate may not be necessary.
If you are concerned about your loved ones having to go through the probate process when you die, there are steps you can take ahead of time to prevent that. During your lifetime, you can establish a revocable living trust that becomes the owner of all your assets.
A living trust is an estate planning document which contains your wishes regarding the distribution of your assets upon your death. Unlike a last will and testament, which requires the supervision of the Court during the process of distribution (in other words, probate), the law does not require the Court to intervene when a valid trust is in effect. With a revocable living trust, you maintain complete control over all of your assets during your lifetime. When you die, that control is passed on to someone that you have appointed to be the Successor Trustee. There is usually no need for probate.
AZ Statewide Paralegal has decades of experience offering professional legal document preparation services, including document preparation and service for wills, trusts, and probate in Arizona. By using our service you can avoid the expense of a high priced attorney. We can prepare a revocable living trust as well as a “pour over” will, a living will, health care power of attorney, and other documents you may need to ensure that your assets transfer to your heirs in accordance with your wishes. Contact our office in Tucson, Phoenix, or Mesa today so that we can walk you through the document preparation services we offer.
With a revocable living trust, you will be able to do anything with your assets during your lifetime that you could do if they were not in the trust. Here are answers to some common questions that people have about a revocable living trust.
Do I have to file a separate tax return for the trust?
No, you will file your taxes as you always have, using your social security number. There is no separate Tax ID number for your trust.
Does a revocable trust offer me any asset protection during my lifetime?
No, since you have complete control over your assets they are subject to attachment as if you held them in your name. If you want a trust that offers you asset protection during your life then you need some type of irrevocable trust, and an attorney to draft it for you.
However, the revocable living trust does offer your heirs some asset protection. There is a “spendthrift” provision that means that if one of your heirs/beneficiaries has a judgment placed against them prior to your death then, at the time of your death, rather than taking possession of the assets to be inherited the beneficiary can request that the Successor Trustee keep the assets in the trust. In this scenario the judgment creditor of the beneficiary cannot attach the assets in the trust.
If I am married, how many trusts do I need?
You and your spouse need only one revocable living trust. You will both be both trustors (creators of the trust) and trustees. When one spouse dies, the other spouse maintains all authority and control over the assets in the trust.
What happens when I die? Does my spouse have to do anything to ensure he/she has access to all of our assets?
Since all of your assets are held in the name of the trust there is no need to change anything. All documents of ownership, like deeds, bank accounts, etc., that are in the name of the trust are then within the control of the surviving spouse. If there is no surviving spouse, control passes to the Successor Trustee named in the trust.
If I have a living trust, do I still need a will?
You may wish to draft a “pour over” will in addition to your trust. This type of will names the trust as the beneficiary. When you and your spouse (if you are married) die, anything that you have acquired during your lifetime that you have forgotten to put into your trust will be “poured over,” or placed into the trust.
What information do I need to gather to have a trust drafted?
The information needed to draft a trust is relatively simple. You will need:
- Your children’s first and last names, their dates of birth, and the city and state in which they live.
- The name, date of birth, and city and state of residence of the person whom you wish to name as the Successor Trustee—the person who will assume control of the trust when you (and your spouse) die.
- The name, date of birth, and city and state of residence of the person whom you wish to name as a backup to the Successor Trustee, in case the Successor Trustee is unwilling or unable to take control of the trust when the time comes.
- A copy of the deeds to any real property you own, the names of financial institutions where you have accounts and the account numbers, and the year and make of vehicles worth more than $50,000.
- You should have an idea of how you want your assets to be distributed and to whom.
- Our trust package also includes a living will and health care power of attorney. You should decide whether you will consent to an autopsy or want to make an organ donation.
What other documents do I need to draft?
Depending on your circumstances, we offer a number of related documents in addition to your revocable living trust, “pour over” will, living will, and health care power of attorney. Call us to discuss your situation and find out whether you might need:
- Durable Power of Attorney
- Schedule “A”
- Personal Property List
- Procedure at Death Instructions
- Affidavit of Trust Existence
- Quit Claim Deeds for Real Estate
- Assignments for Personal Property
AZ Statewide Paralegal offers professional legal document preparation services, including document preparation and service for wills, living trusts, and probate. We have decades of experience preparing documents for proceedings in Arizona. By using our service you can avoid the expense of a high priced attorney. There is no need to worry about deadlines and properly completing the forms. We know what to ask and provide this service to hundreds of clients each year. Contact our office in Tucson, Phoenix, or Mesa today so that we can walk you through the probate document preparation services we offer.