What Is the Difference Between a Living Trust and an Estate Account?

By Jane Meggitt

Living trusts and estate accounts are entirely different entities. The former is an estate-planning tool that allows a person to control assets placed in the trust during his lifetime and simplifies distribution to beneficiaries after death. The latter is an account opened by the executor of an estate after probate has been commenced to pay the estate's taxes, debts and any other necessary distributions out of estate assets.

Living Trust

A living trust, usually drafted with your attorney, is a document that acts in some aspects like a will. You put assets into the living trust such as your house, stocks and bonds, and bank accounts then typically name yourself as trustee. In the capacity of trustee, you administer these assets while you live, and when you die, the assets pass to the beneficiaries you named in the trust, bypassing probate. In other words, you don't technically own the assets, as they are now owned by the living trust, but you retain full control over them. Most living trusts are revocable, which means you can change the terms at any point in your life, or you can dissolve the trust entirely. When you die, the trust becomes irrevocable and cannot be changed.

Probate

Probate is the process of proving a decedent's will in court. Probate laws vary by state, but generally, the probate court in the county where the decedent resided formally appoints the executor named in the will, who is responsible for estate administration. The executor controls all aspects of any property titled in the decedent's name. She must inventory all of the estate's assets, including the value of each asset at the time of death. Depending on the size of the estate and other variables, such as challenges by heirs or beneficiaries, the probate process can take a year or more before assets are distributed.

Protect your loved ones. Start My Estate Plan

Estate Account

Before opening an estate account with a bank or other financial institution, the executor first must apply for a tax identification number for the estate from the Internal Revenue Service. The decedent's Social Security number cannot be used for the estate account. The executor must provide the financial institution with a certified copy of the death certificate and a certified copy of letters testamentary issued by the court – documents naming the executor as estate administrator. The executor must also ensure that the decedent's probate assets, such as bank and brokerage accounts, are re-titled "The Estate of ..." rather than left in the decedent's name until the assets are distributed to heirs and beneficiaries.

Court Supervision

Living trusts bypass probate and allow more timely distribution of assets by the trust's executor, but there are certain disadvantages. The executor of an estate going through probate is under court supervision and must supply the probate court with regular accountings. The executor of a trust has much more leeway – but much less supervision – which can be problematic if the individual’s honesty comes into question. Additionally, even if you create a living trust, you still need a will. Any assets not held in the trust must be distributed in accordance with the will.

Protect your loved ones. Start My Estate Plan
When Does a Testamentary Trust Will Go Through Probate?

References

Related articles

Items That Are Not Part of a Probate Estate in Pennsylvania

Not all of a decedent's property in Pennsylvania falls under the state's probate laws. Whether or not a particular asset falls under the state's probate laws depends on how it is titled or if an asset includes designated beneficiaries. Generally, assets titled solely in the decedent's name must go through probate, while assets jointly held with right of survivorship and assets with designated beneficiaries do not.

Executor of Estate Law in Ohio

An executor is the person appointed, in your will, to administer your estate after your death. Your executor should be someone you trust to disburse your property to your beneficiaries according to your wishes. While you are free to name your executor, Ohio law does set forth certain requirements to ensure the probate process goes smoothly. The probate court must approve the executor before he starts work. If you do not have a will, the court will appoint an administrator. Collectively, executors and administrators are referred to as personal representatives.

Are Living Trusts Exempt From Lawsuits?

Trusts can provide many advantages for asset protection, as well as easing the transfer of property from one generation to the next. However, not every trust protects assets from creditors or lawsuits. Testamentary trusts, which only become active after your death, can protect assets from your beneficiaries' creditors. However, living trusts, created during your lifetime, only provide protection from lawsuits against you if the trust is irrevocable.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Should a 401(k) Be Put Into a Living Trust?

A living trust can be an important part of an estate plan, allowing assets to pass directly to named beneficiaries ...

Can an Executor of an Estate Distribute Gifts From a Trust?

An executor is to a trustee what a cat is to a dog -- they’re both animals but different species. Executors and ...

Is a Living Trust Liable or Subject to Probate?

A living trust holds assets that are managed by a trustee for intended beneficiaries. Also called a revocable trust, it ...

How to Transfer a Vanguard Account to a Living Trust

Transferring property to a living trust is an important step in setting up the trust. Investment accounts, such as ...

Browse by category
Ready to Begin? GET STARTED