I already have a will, but I keep hearing about living trusts for estate planning. I understand that a living trust avoids probate so that my heirs get all my property immediately after my death. Is that worth the additional cost?

Revocable trusts, or living trusts, are the latest craze in modern estate planning, and they have several advantages over a traditional will. A trust is an estate planning tool that provides management of a person’s assets during lifetime as well as upon death. The person may be the trustee and maintain control of his or her assets even though they belong to the trust. If properly done, a trust can eliminate the need for probate and reduce or eliminate estate taxes. Trusts are a rapidly growing area of law practice, but they are not for everyone.

Many people are fearful of probate and its attendant attorney fees, but Kansas lawyers may charge only reasonable fees for necessary services, not percentage fees. The vast majority of probate proceedings are routine and, therefore, not costly. Although fees may increase in the event of unforeseen tax issues, disputed creditor claims, conflict between heirs or other litigation, these same issues can arise with a trust — a trust is no more protection against the possibility that someone will kick up a fuss. Liquidation of assets in probate is required only if necessary to pay expenses, creditors, taxes or to make distributions to beneficiaries. A trust is no guarantee against such liquidation for the same purposes. Finally, estate tax planning can be done with both wills and trusts to reduce or eliminate tax consequences.

The other problem with probate which people fear is that there will be a long waiting period for distribution of assets. In Kansas, however, formal probate procedures can start as early as a few days after death, and distribution can occur as soon as it is clear there are sufficient assets to pay expenses, creditors, and taxes. Creditors have up to four months to submit claims, and the personal representative may, but need not, delay distribution until the end of the creditors’ claim period. Likewise, a trustee may also have to delay distribution to pay taxes or liquidate assets so as to divide property. Moreover, an improperly prepared or funded trust may require money and time to correct before distribution can be carried out.

In other words, a living trust is not a panacea, and estate planning is not a one-size-fits-all project. Although your will or trust may be similar to your neighbor’s, it must be individualized to fit your needs. First off, get your old will out and read it. You may find that the estate planning dollars you’ve already spent still will do the job. If you think you need changes, shop around. Most lawyers will be able to quote a fee schedule or will meet you for an initial consultation for a modest fee. When shopping for estate planning assistance, be wary of canned presentations. Make sure your estate planning attorney has legal malpractice insurance. Ask lots of questions — be sure you understand the underlying reasons for your attorney’s recommendations. Make sure you know exactly what fees will be charged and what those fees cover. Be wary of any seller who discourages you from reviewing the will or trust at your leisure or who discourages you from seeking independent advice.

If you need some help getting started, call the Kansas Elder Law Hotline — (888) 353-5337, contact your lawyer, or get in touch with the Senior Citizen Law Project attorney in your area by calling the Kansas Department of Aging.