Does a Living Trust go through Probate? What do I need to know about setting one up?

Does a Living Trust go through Probate? What do I need to know about setting one up?

One of the main attractions of a Living Trust is that it does not go through Probate. This has many advantages for beneficiaries under the Trust including a limitation on family provision claims against your Estate.

A Living Trust, also called an ‘inter vivos trust’, is a trust set up during your lifetime. All your assets are transferred to the Living Trust. You still retain control of the assets in the Trust by naming your self as the Trustee. On your death the Trust continues to operate with the appointment of a new Trustee.

If you believe that setting up a Living Trust would suit your particular situation you need to seek expert legal advice from a Wills & Estates lawyer on the drafting of the Trust Deed to ensure the trust is set up in accordance with legal requirements. In addition, you will need advice on any taxation implications that may arise on the initial transfer of your assets to the Living Trust. This includes advice on any stamp duty or capital gains tax that may be payable.

When deciding to set up a Living Trust it may be a matter of weighing up the taxation implications in the transfer of your property to the Trust, against the possibility that your Estate may be subject to a family provision claim. In New South Wales the class of persons eligible to make a family provision claim is very wide and includes ex partners as well as their children (if they have resided with you) and any person who has been partly or wholly financial dependent on you during your lifetime.

Setting up a Living Trust for client’s falls under the general heading of Estate Planning. Estate Planning is an important facet of the legal work performed by Heckenberg Lawyers. In Estate Planning we use our extensive experience in Wills and Estates to plan your Estate for a wide number of reasons including the minimisation of taxation and the protection of your assets from a family provision claim after your death.

Regardless of whether your Estate will be large or small all our client’s benefit from expert legal advice on planning their Estate. This advice provides peace of mind to our client’s whilst they are alive and financial security to their intended beneficiaries after they are gone.

At Heckenberg Lawyers we don’t take our clients’ confidence for granted: we work hard to earn it by providing an efficient, cost effective service which puts your interests first and doesn’t cut corners. We take pride in achieving repeat custom and winning clients by word of mouth recommendation.

If you need advice about a Will or an Estate matter please call 02 9221 2779 or email info@hecken.com.au to arrange an initial consultation with principal lawyer Graeme Heckenberg at our new Macquarie Street offices .

See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.