Once you have considered the main reason for doing a living trust, that is: avoiding probate, you need to consider some other advantages that can be offered by a living trust.
 

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Does owning property in more than one state matter? If you have real estate in two states, lets say a home in Louisiana and a condominium in Mississippi, your heirs will be subject to multiple probate proceedings. Although the law of Louisiana will determine probate procedure, costs and the distribution of your home and movable assets, the laws of Mississippi will control the distribution of your condominium. That is because real estate is subject to the laws of the state where the real estate is located. Your heirs will have to open a succession in Louisiana and they will have to open an ancillary probate proceeding in Mississippi. If you owned real estate in other states, probates would have to opened in each of those states as well.

This problem can be avoided with a living trust. Title to all real estate, regardless of location, is transferred to the trust while you are alive. The trust, through you as trustee or through a successor trustee, can sell the property or distribute the property to your heirs at any time. Since you do not own the property at the time of your death, there is no necessity for any succession or probate. Not in Louisiana, not in Mississippi, and not in any other state.

In many states, however, the ancillary probate problem can be avoided by titling the property as joint tenants with rights of survivorship. If a joint tenant dies, the survivor automatically owns the property. This option is not available in Louisiana since we do not recognize rights of survivorship.

How does a living trust handle disability?  One of the greatest problems facing our aging population is incapacity. Unfortunately, Louisiana law only provides one procedure for taking over the affairs of someone who is incapacitated. It is called an interdiction and involves the filing of a suit against the person incapacitated. It does not matter whether the incapacity is physical or mental, the incapacitated person must be served by the sheriff with a copy of the suit and must file an answer. If the person cannot respond to the suit (which is usually the case) an attorney is appointed to represent him. The court costs and fees for both sides come out of the incapacitated person's estate if the court agrees that the person cannot handle his affairs. This is an extremely disagreeable and nasty procedure that is costly in terms of money and in terms of damage to family relationships. With a living trust, you appoint a successor trustee who automatically takes over in the event of incapacity. There is no court proceeding, no expense, and you choose the person who handles your affairs and estate rather than the court.

Interdiction proceedings can also be avoided by the use of a power of attorney giving someone that you designate the authority to handle your affairs.

Does a living trust give you more privacy?   Probate records are public and open to anyone who wants to go to the court house and look at the succession proceeding. The record will show the original of your will (if you had a will), an inventory of all property with values, a list of creditors and how much they are owed, and a list of heirs together with how much each received and how much tax each owed. In other words, the probate process affords no privacy. A living trust, detractors will tell you, also affords no privacy since the trust has to be recorded. The truth is probably somewhere in between.

A trust that owns real estate is supposed to be recorded where the real estate is located or a summary of the trust can be recorded. This means that the trust or a summary would be available to anyone who wanted to inspect the conveyance records. A trust, however, does not usually contain the detailed information that a succession proceeding contains. You can create a trust and make transfers of assets to the trust at any time. These assets, other than real estate, would not necessarily be revealed in the trust document. The trust would reveal, in a general sense, who your heirs are. A trust will typically set up classes of beneficiaries. For example, the trust may state that one-half of the assets will eventually go to a class made up of children and one-half to a class made up of grandchildren. Unlike a probate proceeding, there would be no listing of names, addresses, social security numbers, and values of the property received. A trust, generally, contains many pages of legal structure but very little personal information. A trust summary, obviously, contains even less information.

When does a successor trustee take over?
Most living trusts include detailed provisions for transferring the office of trustee to a successor. The person or spouses who start the living trust are usually trustee until: 1) the last settlor dies, or 2) the last settlor becomes incapacitated, or 3) the last settlor resigns as trustee.

In the typical living trust, a husband and wife are the settlors and the first trustees. If one dies or becomes incapacitated, the other becomes sole trustee. When the last settlor dies or becomes incapacitated, one or more children take over as trustees. The original settlors of the trust, since the trust can be amended or revoked by them, can resign some or all of their powers as trustee in favor of a successor trustee. This gives the settlor the opportunity to turn over some power to a son, for example, and see how he does in taking care of the trust. If the son does not do well, the settlor can replace him. The living trust, unlike most irrevocable trusts, allows you to test your successor trustees before turning over complete control.

Although we do not consider the standard arguments against living trusts to be persuasive, there are a few points you should consider before deciding that a living trust is for you.

	Living trusts aren't for everybody. Although we generally favor living trusts, they tend to be sold as the answer to everyone's estate planning needs. You should have the right combination of estate planning needs to truly benefit from a living trust. How do you know? You read all you can about the subject and then you talk to an estate planning professional who handles both traditional estate planning methods and living trusts.
	A living trust costs more than a will. Although the expense of creating a living trust should certainly be far less than the expense of probate, the expense comes now rather than after your death. It is your heirs who benefit in the savings.
	A living trust usually involves more work. Since the settlor, beneficiary and trustee are initially the same person, it is advisable to keep complete records of financial transactions. There is also the initial work of transferring assets to the trust and in making sure that records are changed at banks and brokerages showing the change in ownership. On the other hand, your heirs are relieved of a lot of the work involved in settling an estate.
	A living trust must be prepared by someone who truly is experienced in this area. Having a living trust that is not properly drafted will cause you many more problems than it will solve. Do not attempt to use any mail order or pre-printed form. We have seen many of these types of living trusts –not one was valid in Louisiana. There is one living trust kit that is sold for $12.95 in many Louisiana office supply stores. The cover states that it is "valid in all fifty states." It is not valid in Louisiana because the Louisiana Trust Code requires that all trusts be in authentic act form. In other words, it must have a notary and two witnesses. Another living trust that we have seen was prepared by a Missouri corporation and was certified as valid in Louisiana by someone claiming to be a lawyer. This trust was brought to us after one spouse died and it was immediately obvious that the trust was worthless since it was not an authentic act. This invalid trust cost $1,500, so price alone does not guarantee a good trust (we have also seen a $3,700 invalid trust). A living trust must also address forced heirship and other matters peculiar to Louisiana. For example, almost every living trust prepared in the other 49 states will have a power of appointment (the power to authorize someone else to direct where assets go). This type of authority can be illegal in Louisiana. If you are not willing to pay a professional to create a living trust that is drafted for your exact needs and takes into account Louisiana law, you should not be considering living trusts.
	A living trust does not avoid all probate type expenses. When the first spouse dies there will have to be documents prepared and valuations made if the trust is going to be divided into A and B trusts. Annual tax returns will have to be filed for the B trust. When each spouse dies, there will still have to be federal and/or Louisiana death tax forms to be prepared and filed. The fees involved should be considerably less than would be involved in a probate.

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