Douglas S. Holden
What is the Difference: Living Will & Revocable Living Trust
I have seen various definitions for what makes a trust a “Living Trust,” Most of the time, one will simply define a Living Trust as a trust made by the person who is called a Trustor or a Grantor during his or her lifetime.
However, by this definition, the person’s Will should be called a Living Will since it too is made by the Testator (male) or Testatrix (female) during his or her lifetime. However, there is a different document that is rightly called a Living Will and it has nothing to do with a Last Will and Testament. The Living Will is also called a “Declaration as to Medical Treatment.” It is derived from Colorado Revised Statutes § 15-18-101 and the following. It is called The Colorado Medical Treatment Decision Act. Within this Act, § 15-18-104 is entitled, “Declaration as to Medical Treatment.” So, this document is made by a living person who is stating his or her terms of treatment when two physicians certify in writing that the individual is in a terminal condition or a persistent state and lacks decisional capacity at this time to make the decision regarding termination of medical treatment. In essence, it is called the “Pull the Plug” document. The Last Will and Testament – The Will – is the document in which the Testator says what should happen to his property at his death. It is made while the Testator is Living, but the transfer of property is not made until his death. A “Living Trust” is made by the Trustor, while living, of course, but the transfer of title to property placed in the Trust is made during the Trustor’s lifetime. A Revocable Living Trust (RLT) is a Living Trust that can be revoked by the Trustor during his lifetime. At the Trustor’s death, the RLT becomes irrevocable unless there is a special provision in the Trust stating that the Trust will remain revocable after Trustor’s death. This same trust can be created in the Last Will and Testament, to take effect at death. In such a case, it would be a testamentary trust, not a living trust. An Irrevocable Trust is, of course, irrevocable. It can be a living trust or not. In other words, it can be created in the Will, which it would then be called a testamentary trust – formed to be effective by the Last Will and Testament. So a trust can be revocable or irrevocable. It can be a living trust or a testamentary trust. A living trust that is revocable is called a Revocable Living Trust.
© DOUGLAS S. HOLDEN, P.C. All Rights Reserved.