Your Guide to Creating a Living Trust: Georgia Laws & More

 

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Living Trust Georgia: The Basics

Explore living trust Georgia options for estate planning: protect assets, avoid probate, and ensure your family’s future is secure. Learn more here.

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Author: Stan Faulkner, Founder, Perigon Legal Services, LLC

Mr. Faulkner is an experienced counselor and litigator with 15 years of experience, having held bar licenses in four states (Mo, Il, Ct and Ga). Stan Faulkner uses this experience and focuses his skills in the pursuit of assisting individuals in probate (trust and estate) matters, guardianships and conservatorships, estate planning, business disputes and contract disputes. Updated on January 09, 2024.

A living trust is a legal document that transfers ownership of your assets into a trust where you can continue using them until they are transferred to your beneficiaries after death.

It is a crucial estate planning tool that meets your final wishes. People often use living trusts to avoid the complex probate process after death or even plan for the possibility of becoming mentally incapacitated before death.

The living trust can either be revocable or irrevocable, and it goes into effect while you’re still living. There are four significant roles in a trust – both revocable and irrevocable. 

  • Grantor: Also known as the settlor, this is the original owner of the property and estate placed in the living trust and is the person who creates the trust.

  • Trustee: A trustee is the manager of the grantor’s assets and is responsible for distributing them upon death. 

  • Successor trustee: A person appointed to manage the trust should the initial trustee become unable to do so (mental disability, death). This is necessary if the grantor is also the trustee.

  • Beneficiaries: Person(s) the grantor has bestowed the assets in the trust to inherit after death. 

Determining which type of trust is best for you is a big decision and requires the help of a skilled estate planning lawyer. If you want to create a living trust in Georgia, read on or contact Perigon Legal Services today to build a comprehensive estate plan with a reliable living trust.

What Is a Revocable Living Trust Georgia?

By far the most common type of trust in Georgia, a revocable living trust allows the grantor to keep control of their assets and make changes to the trust at any time. 

The term “revocable” means that if you create this type of living trust, you can change it or revoke it whenever you want. It permits the grantor to also serve as the trustee. Still, it does not help avoid estate taxes because your ability to revoke or amend the revocable trust causes your assets to still be includable in your estate.

However, in Georgia, most people do not have to worry about estate taxes because the federal estate tax is only levied on estates worth close to $12 million. Georgia also does not have its own estate tax. If you want to learn more about whether a revocable living trust is right for you, our attorneys are here to help you explore your options.

Benefits of a Living Trust in Georgia

 

In most states, a revocable living trust’s primary goal is to avoid going through probate. This is a relevant concern as probate is time-consuming, with several costs and associated hassles. However, under state of Georgia probate law, the process is relatively straightforward and inexpensive when you have a properly written trust document that names an executor

A revocable living trust in Georgia is for those:

  • Who plan to avoid conservatorship and guardianship in the event of future disability, seeing as the trust already provides management of your assets and use of them for your benefit;

  • With very substantial estates;

  • Who own property and assets in several different states;

  • Who are very sensitive about privacy and wish that the beneficiaries of their assets remain confidential and not open to the public as would be the case with a will; and/or

  • Who fear a contest to their will. With a revocable living trust where all assets are transferred before death, no estate goes through probate, and there is no will to challenge. 

While the above categories are relatively straightforward, determining if a revocable living trust suits you is not always easy. When you meet with Atlanta estate planning attorney Stan Faulkner of Perigon Legal Services, you will be expertly guided through each of the pros and cons of revocable living trusts vs. irrevocable trusts and the ways by which your estate planning choices may affect you and/or your loved ones in the future.

What Is a Revocable Living Trust Georgia

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What Is an Irrevocable Living Trust Georgia?

As its name suggests, all provisions established in the irrevocable living trust may not be reversed by the grantor. Several types of irrevocable trusts exist, including irrevocable life insurance trust (ILIT), bypass/credit shelter trust, Charitable Remainder Trust (CRT), and Qualified Personal Residence Trust (QPRT).

This trust type demands that the grantor transfer all ownership of their property and real estate to the living trust. In turn, the trust provides certain benefits such as protection from estate tax (i.e., in Georgia, if the estate is worth close to $12 million) or creditors’ claims. The grantor cannot alter any of the provisions within the trust. A revocable living trust turns into an irrevocable trust once the grantor dies.

Although there are only two types of trust, a great estate planning attorney can include specific clauses to establish conditions in the trust that align with the unique needs of the grantor and their family members. For instance, a “spendthrift clause” prevents creditors from going after the fund after the grantor’s death and also bars beneficiaries from using the trust’s assets to pay off debts.

There are several benefits to establishing an irrevocable living trust in Georgia, such as:

  • Avoiding estate taxes: As mentioned before, the federal estate tax is only levied on estates worth close to $12 million. You may be subject to considerable tax liability if your estate surpasses this amount. By creating an irrevocable trust and transferring property ownership to it, you can reduce taxes on your estate.

  • Asset protection: Assets in an irrevocable living trust are protected from creditors and lawsuits. This means that if someone sues you, they cannot touch the assets owned by the trust.

  • Privacy: Similar to a revocable living trust, an irrevocable trust also offers privacy as the assets are not subject to probate and, therefore, remain confidential.

  • Control over how and when beneficiaries receive assets: With an irrevocable trust, you can determine when and how your beneficiaries receive their inheritance. You can also protect them from squandering away their inheritance by restricting how it is spent. 

  • Avoiding probate: As with a revocable living trust, an irrevocable trust also avoids the lengthy and expensive probate process.

Whether you create a revocable or irrevocable living trust in Georgia will depend on your individual needs and wishes. It is best to consult an experienced estate planning attorney who can guide you in making the right decision for your unique situation. With a well-drafted trust, you can ensure that your assets are protected and distributed according to your wishes, providing peace of mind for you and your loved ones.

Trust vs Will in Georgia

Many people have heard “trust” and “will,” but few know the differences. Both are applicable estate planning tools that serve different purposes but can be used together to create a complete estate plan.

A will, also known as a Last Will and Testament, is a document that states who receives your property after your death with an appointed legal representative to execute your wishes. On the other hand, a trust is a legal arrangement used to manage your property while alive and distribute it following your death.

One key difference between a will and a trust is that the former will only go into effect after your death, while the latter takes effect and starts functioning after it is created. 

  • A will only cover properties in your sole name when you die. It does not protect assets held in trust or joint tenancy. It also does not cover properties that pass to a beneficiary by law, such as life insurance policies or by contract. By contrast, a living trust covers, governs, and can distribute any property it’s been funded with. As a trust grantor, you transfer your assets into it, including life insurance policies and tenancy-in-common interests.
  • A will passes through probate, and the probate court oversees the process of ensuring the will is valid and distributing the property to living beneficiaries. A living trust allows you to skip this probate process, saving you time and money.
  • Once a will goes through the probate process, it becomes a public record. But the terms of a living trust stay private.
  • A will allows you to specify funeral arrangements and name a guardian for children, but a trust does not.
  • A will can be changed as often as necessary. On the other hand, a living trust is a written document that cannot be modified once executed. However, amendments can be made if specific provisions are included in the original trust document.

When you meet with the trusted Georgia estate planning attorneys at Perigon Legal Services, we will help you understand how these tools can benefit your estate planning and create a comprehensive plan to ensure that each covers your needs.

Trust vs Will in Georgia

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Executing a Living Trust in Georgia Without a Complete Estate Plan

To prevent any issues when executing a living trust in Georgia, it is advisable to have a will as a backup to your living trust. Upon your death, the trust can only distribute what was titled in the trust.

If, for instance, you purchase a new property and don’t add it to your living trust before death, that property will not pass under the terms of the trust. A will can be used to appoint someone, such as a surviving spouse or another beneficiary, to inherit property you haven’t left to a particular entity in your trust, which may allow them to avoid the probate process.

Without a will, any other assets not listed in the trust will pass through a probate process called intestate, which is used when there is no will in place. This process is even more burdensome than the regular probate.

So, have your lawyer draft your will even if you have a trust. This type of will is known as the “pour over” will, meaning that any other asset(s) not included in your trust pours over into your trust to be administered accordingly.

If you are considering a living trust in Georgia, contact Stan Faulkner at Perigon Legal Services to ensure that all of your estate planning needs are taken care of. We can help you create an estate plan that reflects your current and future wishes for yourself and your loved ones.

The experienced attorneys at Perigon Legal Services also keep up with state laws and provide legal counsel to ensure that your estate plan meets all existing laws and requirements in Georgia. This includes assistance with preparing all appropriate documents, such as a living trust agreement, pour-over will, power of attorney, and more.

Learn More About Georgia Living Trust Laws Today

It’s always best to consult an attorney to establish a living trust formally. You want to ensure you work with an experienced attorney so that the irrevocable or revocable living trust accomplishes what you need. Otherwise, it could be challenged.

Don’t take this risk — contact the Georgia estate planning attorneys at Perigon Legal Services today to learn more about how we can help you. We have over 18 years of experience helping individuals and families in Atlanta, Georgia, and surrounding counties accomplish their asset goals through responsible estate planning, and we can’t wait to assist you.

 

FAQ About Living Trusts in Georgia

 

What are the Benefits of a Living Trust in Georgia?

Living trusts offer privacy, as they are not subject to the public record like wills. They can also avoid the often lengthy and expensive probate process, provide easier management of your assets if you become incapacitated, and offer flexibility in how your assets are distributed.

How Do I Set Up a Living Trust in Georgia?

To set up a living trust, you must create a trust document, naming yourself as a trustee and someone as a successor trustee. You then transfer ownership of your assets to the trust. It’s recommended that you work with a legal professional to ensure that all aspects comply with Georgia law and truly reflect your wishes.

Can a Living Trust Reduce Estate Taxes?

In some cases, a living trust does not reduce estate taxes. For example, a revocable living trust doesn’t help avoid estate taxes because the trustor’s assets are included in their estate. However, an irrevocable living trust can help minimize estate taxes because the grantor transfers all ownership of their real estate and assets to the living trust.

Is a Living Trust Right for Everyone?

Living trusts offer many benefits. However, whether they are the right estate planning tool for you depends on your personal circumstances, including the size of your estate and your goals for asset distribution and privacy. It’s recommended that you discuss your situation with an estate planning attorney before establishing one.

Learn More About Georgia Living Trust Laws Today

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