QUESTION

Can creditors access living trust?

Asked on Aug 27th, 2014 on Estate Planning - Georgia
More details to this question:
In Georgia, if a life insurance death benefit is paid to a living trust, for the benefit of a minor child, can creditors access this in the same manner they would through probate court, or is the trust shielded? Thanks for your help.
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1 ANSWER

Wills Attorney serving Alpharetta, GA
4 Awards
The answer to this question depends very heavily on (1) how the trust is written and (2) how the beneficiary designation was set up. The term "living trust" usually means a revocable living trust, and the general rule is that assets held by or paid to a revocable living trust can be accessed to pay the debts of the trust's deceased creator. But if the trust was structured to protect life insurance benefits specifically, it might not make them subject to creditor claims. The trust also might not be a revocable trust - it could have been an irrevocable trust created during the creator's lifetime - that is also technically a living trust although not that's not the most common use of that term. An irrevocable trust usually would be designed to avoid creditors claims made against the deceased creator. In addition, if this is a Georgia decedent, the minor child may be able to use a year's support right to get around the creditors' claims even if the life insurance might otherwise be exposed, even though there's a living trust in place and not simply a probate estate. If you really want an answer, I suggest that you contact a good estate attorney, preferably one with some litigation experience, and see if they can review the trust and the beneficiary designation and see what the situation actually is. It's too fact-dependent a question to be answered in this kind of forum.
Answered on Aug 28th, 2014 at 1:35 PM

This answer is being provided as general information and not as legal advice. No attorney-client relationship is created by this answer.

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