The term “living will” is not really a legal term. However, many people use the term when first researching a living trust. People are used to having a will to distribute property after the death of the person making the will. The confusion probably comes from people knowing that the trust will distribute the property after a death. In a sense, a living trust is a substitute for the standard will.” A living trust and a will are two separate items. So when the term “living trust will” is used, as a lawyer, I’m not sure what it is There is a legal document called a living trust and a different legal document called a will. Actually, there should always be a will that accompanies a living trust. It’s called a “spilt will.”
A for over will serves as a fail-safe mechanism for living trusts. Trusts are often called “revocable living trusts” or “revocable living trusts” because they are always revocable. That means the trust creator can revoke the trust and bring everything back to status quo anytime he or she wants.”
A revocable trust only prevents probate if the person who sets it up manages it properly. Most people who get a living trust do not avoid probate. There is a legitimate argument in the legal community against this, because many of them do not provide the testamentary protection that was “sold” to the family. This is not a problem with trust. It’s a problem with lawyers and how they educate their clients. Most of them do not provide the client with enough education and do not know how to “use” their trust, thus failing to avoid probate.
When the trust does not protect the family against probate, the decedent’s assets must be probated. That means the family has to go through the probate process. If the decedent had a will, then the court will use the will to guide the probate process. If there is no will, the court will treat the case as an “intestacy” proceeding. Intestate means there is no will.
When you get a revocable living trust, you must also get an indirect will. If for any reason the estate needs to be probated, the courts can use the will to guide the probate process. Hopefully, the discharge will never be used, because the trust will prevent succession to all of the decedent’s assets.
Because surwills do not make a distribution of property, as ordinary wills do. Once the property is probated, a Will of Transfer directs the court to “pour” all of the property into the revocable trust, so that it can be distributed according to the terms of the trust.