Many people think that simply having a trust prevents probate or that regardless of what else happens, their will or trust will eventually and ultimately control how their assets are distributed. This is thoroughly false. To prevent probate and control distribution of assets, more needs to be done than simply signing a trust. The documents of ownership associated with your assets need to be changed to make your trust the owner or beneficiary of the assets. Two stories.
First story. Mom has a $500,000 life insurance policy naming her three daughters as beneficiaries.
Mom later has a falling out with one daughter and signs a trust which states that all her assets are to be divided equally and distributed to her remaining two daughters. She dies. Does the life insurance contract or the trust govern distribution of the life insurance proceeds? The terms of the life insurance contract govern. Remember, asset ownership documents override, prevail over, transcend, and trump your will and trust. The insurance proceeds are divided among all three daughters, despite what the trust says. To override the insurance contract would require a court order and there is no guarantee the court will rule for the two remaining daughters.
Second story. Dad has a small gas station business worth $600,000. Dad has four sons. Business and tax documents indicate the business itself is owned by two of the sons. Contradicting this, Dad’s trust says divide the business equally among the four sons at his death. Joy and happiness in Mudville among the four brothers when Dad dies! The Business, the bulk of Dad’s assets, goes to the two sons.
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