Mountains and desert with a living trust legal document inside of a shield.

This is the most important and most overlooked point about living trusts. People often hear that a trust avoids probate and assume that signing the trust document is enough. It isn't. A trust only controls the property that has actually been transferred into it. Anything still in your own name at death follows the normal probate path, whether or not you have a trust sitting in a drawer.

Funding a trust means retitling your major assets so the trust, not you personally, is the owner. That typically includes:

  • The deed on your home and other real estate

  • Bank and investment accounts

  • Business interests, where appropriate

  • A coordinated review of beneficiary designations on life insurance and retirement accounts

A complete plan also usually includes a pour-over will. That is a backup will that catches any property you forgot to transfer during your life and "pours" it into the trust at death. The pour-over will still goes through probate for whatever it catches, but it is a safety net for the trust, not a substitute for proper funding.

If you have a trust and are not sure whether it is fully funded, that is worth a review. An unfunded trust is one of the most common, and most painful, surprises in estate planning.

 

Anthony Spratley
Experienced Divorce, Child Custody, and Guardianship Lawyer Serving Albuquerque and Beyond