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In most states the laws give to a surviving spouse certain legal rights that cannot be defeated by a will. Some of these state laws, but not all, also give to a surviving spouse certain rights that cannot be defeated by gifts, the revocable living trust, or other transfers. These marital property rights are called community property, dower, curtesy, elective rights, statutory rights or various other terms. These rights typically give one-half, one-third, or some other portion of the estate of the deceased to the surviving spouse.
If community property is to be placed in a revocable trust by a married person, the grantor's spouse should join in the execution of the trust agreement. In general, community property consists of whatever property is gained during the marriage by the toil, talent, or other productive faculty of either spouse. In general, however, property obtained by one spouse by gift, devise, or descent is not included in community property. In community property states, you should check the specific laws of your state on these questions, since they vary from state to state. Therefore, it is suggested that the spouse of the grantor sign all transfers of property by a married person. This is not a problem for most married people because they generally own property in joint names.
If you have children from a previous marriage, a Trust is a private instrument by which you can plan the future disposition of your assets to ensure that each family member is treated as you desire, without interference from others.
A major advantage of a Living Trust is the speed and flexibility it provides. Since Court approval is not required, property can be transferred immediately after death, providing for family needs without the delay and expensive procedural requirements of Probate.
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