As noted above, you’re in charge of your estate plan. You get to choose the design and implementation of your plan. It’s as if you’re having a new house built; in this case, your attorney acts under your direction to “build,” as it were, the type of structure you request.
If you choose to simply make a will as your main planning vehicle, there’s absolutely no change whatsoever with respect to you or your property while you’re alive. This is because a will, by law, is a dormant document during the life of the will’s maker. Only upon the death of the person who made the will does it become a legally “active” document, and then, in most instances, that happens only when that will is submitted to the probate court. In any event, since a will is not operative during the life of its maker, it’s easy to see how it has no effect on how the person lives.
Similarly, once you sign several pieces of paper in your attorney’s office to establish and fund your trust, your life is no different than it was prior to establishment of your revocable living trust (except for one very important difference—you will then have peace of mind knowing that you, your family, and your property are protected). Even though your home and bank accounts would be owned by your trust because your revocable living trust is your “alter ego” for tax and other purposes, your life will not change. Even though your house is owned by your trust and the county recorder will receive record of this change, your real estate tax bill won’t change. If you have a mortgage on your home, you would just continue to pay it with no change in fees or interest rates.
Likewise, although your bank will know your accounts are now in the name of your trust, you’re not required to order new checks, and you certainly do not have any restrictions when it comes to writing checks, withdrawing money from an ATM, or anything else you’d want to do with your money. Your revocable living trust is somewhat akin to an invisible legal protection that encompasses your assets and will spring into effect if there’s a need. But in the interim, you just continue to live your life as you’ve always done.
For almost all people who undertake proper estate planning, after the implementation of their chosen plan, it’s “business as usual”—they live their lives in the same manner they lived their lives before they established their customized estate plan.
“Funding” is the term used to describe the process of putting assets into a trust so that they are protected by the trust. Unfortunately, this funding process is missing in a large number of trust estate plans because, for a variety of reasons, no one has actually put assets into the trust at the beginning, or over time, the maker of the trust changed houses, opened up other bank accounts, and received (maybe by inheritance) other assets but no updated funding was done. This common problem is a real problem because assets that don’t get legally placed into a trust aren’t protected by the trust. And an empty trust, one without any assets, is a worthless stack of legal papers.
Under the Garn-St. Germaine Act, you have a right, under federal law, to transfer your personal residence into your own revocable living trust if you remain the beneficiary of that trust.