Understanding Revocable Trusts under Georgia Law
Revocable trusts in Georgia are very effective tools in the estate planning arsenal; however, they have often been misused by those seeking to gather clients and assets using “scare tactics” regarding the perils of probate or taxes. You can create a revocable trust during your lifetime and amend or revoke it at any time, with the grantor usually serving as the initial trustee to retain full control over assets.
Many provided documents are generic and not specific to Georgia practice and procedure. When considering a revocable (living) trust as your primary dispositive document instead of a will, it is essential to understand how these tools fit into state law.
Advantages of Using a Revocable Trust in Georgia
While Georgia is a “probate-friendly” state, probate still involves court filings, statutory notices to heirs, and public disclosure of estate information. A properly funded revocable trust allows assets to pass at death without probate, ensuring the trust is not on file in the public record. This provides significant privacy because trust administration generally occurs outside of court. Additionally, incapacity planning is a compelling reason to utilize these trusts, as a successor trustee can manage assets if you become incapacitated, often avoiding the need for a court-ordered conservatorship.
Another major advantage is the continuity of management. Unlike a power of attorney, which ceases to be effective upon death, a trust allows assets to remain under uninterrupted management. This prevents the hardships that occur when an executor must wait for court appointment to access funds. For those with out-of-state real estate, a revocable trust avoids the complexity of ancillary probate, which requires hiring licensed attorneys in other states. Furthermore, trusts provide flexibility for blended families or contentious situations; while a will’s probate can be delayed by objections from relatives, a trustee can proceed with administration without the inherent delays of the probate process.
Costs, Complexity, and the Importance of Trust Funding
Despite these benefits, there are disadvantages and limitations to consider. Trusts generally cost more to create than a simple will and require a strict funding requirement, meaning assets must be properly titled in the trust to be effective. It is also important to note that a revocable trust provides no income-tax or asset-protection benefits during the grantor’s lifetime. Even with a trust, a “pour-over” will remains a necessary safety net to direct any untitled assets into the trust at the time of death.
When a Revocable Trust Makes Sense
Ultimately, I recommend revocable trusts for those who desire privacy, own property in multiple states, or require robust incapacity planning. While a well-drafted will may be sufficient for simpler estates with congenial family members, the front-end investment of a trust is often more than recouped by later savings to the estate. When properly designed and funded, a revocable trust serves as a powerful management tool for the distribution of assets at death, including those intended for long-term legacy goals.
