New York Estate Planning & Elder Law Blog
In the fall of 1990, some thirty plus years ago, your writer first heard of the proposition that if you set up a living trust your estate doesn’t have to go to court to settle – the so-called probate court proceeding for wills. Having spent the previous eleven years as a litigation attorney, and having faced numerous problems probating wills, this sounded too good to be true.
At the time, some of the best estate planning lawyers were in Florida. Perhaps you can guess why. In any event, off I went to Florida to train as an estate planning lawyer and, upon returning, closed the litigation practice and founded Ettinger Law Firm in April 1991, to keep people just like you, dear reader, out of probate court.
The reason I was so excited about the living trust, and continue to be so to this day, is the concept of taking back control from the courts and government and giving it back to you and your family. After all, who doesn’t want control over their affairs?
When you go to court, who’s in charge? The judge, right? Now tell me, does the judge always act in your best interest? Does the judge ever make a mistake? And when the judge says jump, you know what the answer is!
Not only do you pay considerably for this privilege, but it can take many months and often years to complete the probate court proceeding. Meantime, houses cannot be sold, bank accounts accessed, or investment portfolios managed – at least without the judge’s permission which involves additional time and resources to request. Of course, that permission may be denied as well.
With a living trust, your trustee (formerly your “executor” under the will) may act immediately upon death to sell the house, pay the bills and handle the investments – no permission required! An additional benefit is, in the event you become unable to handle your affairs later in life, your trustee may take over by simply getting a letter from your doctor showing you are incapacitated.
Essentially then, a living trust gives you back control.