Free Revocable Living Trust

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Frequently Asked Questions

Why should I have a Living Trust?A Living Trust is a useful estate planning tool that allows the user to arrange how some or all of their assets will be managed after their passing. A Last Will and Testament may help achieve a similar goal, but a Living Trust does not need to go through complicated and potentially expensive probate procedures. What is community property?In a community property jurisdiction, most property acquired during the marriage (except for gifts or inheritances) — the community property — is owned jointly by both spouses and is divided upon divorce, annulment, or death. Joint ownership is automatically presumed by law in the absence of specific evidence that would point to a contrary conclusion for a particular piece of property.

Community property retains its community character when a couple move from a community to a noncommunity State. Any property that each partner brings into the marriage or receives by gift, bequest or devise during marriage is called separate property (i.e., not community property).

In the United States there are ten community property jurisdictions: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Puerto Rico, Texas, Washington, and Wisconsin. Alaska allows couples to opt into a community property arrangement.

If you have community property, then a joint living trust for married or domestic couples may be appropriate; otherwise, you are usually better off having individual living trusts. If you want to proceed with a joint living trust, you should review all state law related to joint revocable trusts and property transfer considerations in your state of residence. In addition to being a community property or a non-community property state, your state may have other specific considerations related to creation of joint revocable trusts.
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The _______________ Revocable Living Trust

I, _______________, presently of _______________, Virginia, (the "Grantor") declare and make this revocable living trust (the "Living Trust"). This Living Trust will be known as The _______________ Revocable Living Trust.

BACKGROUND:

  1. The Grantor presently owns property (the "Property") as described in Schedule A.
  2. The Grantor wishes to ensure that this Property and any income derived from this Property is managed and eventually distributed according to the following terms.
  1. Trust Purpose
  2. This Living Trust is created for the benefit of the Beneficiaries to ensure they are well provided for after the death of the Grantor, however during the lifetime of the Grantor, the interests of the Grantor will be considered primary and superior to the interests of the Beneficiaries. With this purpose, the primary asset management goal for this Living Trust will be the protection of the value of the Property. The secondary asset management goal for this Living Trust is to generate income and growth at a reasonable risk.
  3. Trustee
  4. During the lifetime of the Grantor, and while the Grantor is not incapacitated, the Grantor will serve as the primary trustee (the "Primary Trustee") of this Living Trust.
  5. Upon the death of or during the incapacity of the Grantor, then __________ of __________, Virginia (the "Successor Trustee") will serve as the acting Trustee of this Living Trust. If the Grantor should recover such that they are no longer considered incapacitated then the Grantor will resume their control of the management of this Living Trust.
  6. Beneficiaries
  7. Upon the death of the Grantor, the following individual(s) will comprise the beneficiaries (the "Beneficiaries") of this Living Trust: __________ of __________, Virginia; as well as any heir or issue of those beneficiaries that is entitled to a benefit under this Living Trust in the place of any then deceased beneficiary.
  8. Assign and Convey Property to Living Trust
  9. _______________, as Grantor, has or will assign, convey and deliver all of the rights, title and interest in the Property as described in Schedule A of this document as a gift and without consideration, to be held by this Living Trust.
  10. Amendment During Grantor's Lifetime
  11. At any time during the lifetime of the Grantor and while the Grantor is not incapacitated, the Grantor may, subject to the other provisions of this section, alter or amend this Living Trust on delivery to the Successor Trustee of a written instrument signed by the Grantor. Amendments may include, but are not limited to, the following:
    1. The Grantor may change the number and identity of the Grantors, the Trustees, the Successor Trustees or the Beneficiaries.
    2. The Grantor may add or withdraw property from this Living Trust.
  12. This Living Trust may not be amended after the death of the Grantor.
  13. Revocation During Grantor's Lifetime
  14. At any time during the lifetime of the Grantor and while the Grantor is not incapacitated, the Grantor may, subject to the other provisions of this section, revoke this Living Trust in its entirety on delivery to the Successor Trustee of a written instrument signed by the Grantor. In the event of such revocation, the remaining Property will revert to the Grantor after all the debts and expenses attributable to the Living Trust have been paid.
  15. This Living Trust may not be revoked after the death of the Grantor.
  16. Distributions During the Lifetime of the Grantor
  17. During the lifetime of the Grantor and while the Grantor is not incapacitated, the acting Trustee will distribute as much of the income and principal of the Living Trust to the Grantor as the Grantor may request. While the Grantor is incapacitated and no longer able to manage or continue to manage their own affairs, then the acting Trustee may withhold or make payments out of the resources of this Living Trust of any amount that the acting Trustee in their sole judgment deems appropriate for the maintenance, comfort and welfare of the Grantor.
  18. Distributions Upon Death of the Grantor
  19. Upon the death of the Grantor, and after resolving all applicable legal debts and obligations of the Grantor, the acting Trustee will expeditiously act to distribute the remaining Property as directed in this section.
  20. After resolving all applicable legal debts and obligations of the Grantor, the acting Trustee will distribute the remaining property in this Living Trust in EQUAL shares (individually the "Share" and collectively the "Shares") to the following Beneficiaries:
    1. __________ of __________, Virginia.
  21. Where a Beneficiary is a Minor Beneficiary at the time of the Final Distribution then the acting Trustee may, at their sole discretion:
    1. Continue to act as trustee(s) by holding the Share of any Minor Beneficiary in a separate trust for that Minor Beneficiary under the same terms and conditions as outlined in this Living Trust, and to keep that Share invested, and pay the income or capital or as much of either or both as the then acting trustee(s) consider advisable for the maintenance, education, advancement or benefit of that Minor Beneficiary until that Minor Beneficiary reaches the age of majority whereupon the then acting trustee(s) will pay or transfer the rest and residue of that Share to that Beneficiary; or
    2. Pay or transfer all capital, assets and property of that Share or the amount remaining of that Share to any parent, custodian or guardian of that Minor Beneficiary subject to the same terms and conditions contained in this Living Trust and the receipt by that parent, custodian or guardian will discharge all duties and obligations of the acting Trustee.
  22. Where a Beneficiary is an Adult Dependent Beneficiary at the time of the Final Distribution, the acting Trustee may, at their sole discretion:
    1. Continue to act as trustee(s) by holding the Share of any Adult Dependent Beneficiary in a separate trust, subject to the same terms and conditions contained in this Living Trust, and to keep that Share invested, and pay the income or capital or as much of either or both as the then acting trustee(s) consider advisable for the maintenance, education, advancement or benefit of that Adult Dependent Beneficiary; or
    2. Pay or transfer all capital, assets and property of that Share or the amount remaining of that Share of that Adult Dependent Beneficiary to any parent, custodian or guardian of that Adult Dependent Beneficiary subject to the same terms and conditions contained in this Living Trust and the receipt by that parent, custodian or guardian will discharge all duties and obligations of the acting Trustee.
  23. If any of the named Beneficiaries do not survive the Grantor by at least thirty (30) days but do leave an heir or issue that survive the Grantor by at least thirty (30) days, then the Specific Gift or the Share designated for that Beneficiary, of whatever kind and character, and wherever located, will be distributed per stirpes among those surviving heirs or issue. Where those surviving heirs or issue are not of the age of majority, the acting Trustee may pay or transfer all capital, assets and property attributable to those minor heirs or issue of that Beneficiary to any parent, custodian or guardian of those minor heirs or issue, subject to the same terms and conditions contained in this Living Trust, and the receipt by that parent, custodian or guardian will discharge all duties and obligations of the acting Trustee.
  24. If any of the residual Beneficiaries do not survive the Grantor by at least thirty (30) days and do not leave an heir or issue who survive the Grantor, then the Share designated for that Beneficiary, will revert to the residue of this Living Trust.
  25. If all of the successor Beneficiaries do not survive the Grantor by at least thirty (30) days and do not leave an heir or issue who survive the Grantor by at least thirty (30) days, then all of the remaining property in this Living Trust, of whatever kind and character, and wherever located, will revert to the estate of the Grantor.
  26. If any of the real property to be distributed in this Living Trust remains subject to a mortgage at the time of the Final Distribution, then the Beneficiary taking that mortgaged property will take that property subject to that mortgage and the Beneficiary will not be entitled to have the mortgage paid out or resolved from the remaining assets or residue of this Living Trust.
  27. If any of the personal property to be distributed in this Living Trust is subject to any encumbrances or liens at the time of the Final Distribution, then the Beneficiary taking that property will take that property subject to those encumbrances or liens and the Beneficiary will not be entitled to have any encumbrance or lien paid out or resolved from the remaining assets or residue of this Living Trust.
  28. Trustee Bond
  29. Subject to the laws of the Commonwealth of Virginia and any other applicable jurisdiction, no bond or security of any kind will be required of any Trustee appointed in this Living Trust agreement.
  30. Trustee Liability
  31. The Trustee will not be liable to this Living Trust, the Grantor or to the Beneficiaries for any action or failure to act resulting in loss or harm to this Living Trust, the Grantor or to the Beneficiaries except in the case of gross negligence, willful misconduct, or reckless indifference to the purposes of the trust or the interests of the Beneficiaries. A Trustee will only be responsible for his or her own acts and no Trustee will be liable for any act or actions occurring in the periods before or after the tenure of that Trustee. Any outstanding liabilities of a dead, resigning or removed Trustee are not discharged or affected by the Trustee's death, resignation or removal.
  32. Trustee Death or Resignation
  33. A Trustee may resign at any time for any reason upon at least 30 days' notice to the Grantor, if the Grantor is still alive, to any remaining Trustee, if there are any, and to the Qualified Beneficiaries. If a Trustee dies, that Trustee will cease to be a Trustee as of the date of their death.
  34. Trustee Removal
  35. After the death of the Grantor, the Qualified Beneficiaries may, by unanimous vote of all of the Qualified Beneficiaries, remove a Trustee for any reason or for no reason at the sole discretion of the Qualified Beneficiaries.
  36. At any time after the death or disability of the Grantor, a Trustee or a Beneficiary may apply to a court of competent jurisdiction to remove a Trustee. A Trustee may also be removed by the court on the court's own initiative.
  37. Trustee Replacement
  38. At any time where the Grantor is alive and not incapacitated and where a Trustee has been removed, died, resigned or is no longer able to act as Trustee for any reason, a replacement Trustee may be appointed by the Grantor.
  39. Where the Grantor is dead or incapacitated, and where a Trustee has been removed, died, resigned or is no longer able to act as Trustee for any reason, and where a replacement Trustee is deemed necessary by the remaining acting Trustee, a replacement Trustee may be appointed by a majority vote of all acting Trustees still able and authorized to act.
  40. Where the Grantor is dead or incapacitated, and where the Living Trust is left with no Trustee, a replacement Trustee may be appointed by a unanimous vote of the Qualified Beneficiaries.
  41. Trustee Powers
  42. Powers granted to a acting Trustee of this Living Trust include, but are not limited to, the following:
    1. The Trustee will have the same rights and obligations to manage the Property as if the Trustee were the owner of the Property.
    2. After the death of the Grantor, the Trustee will have the power to appoint one or more individuals or institutions to act as co-Trustee where it is deemed reasonable and in the best overall interest of this Living Trust.
    3. The Trustee may employ and rely on the advice of experts including, but not limited to, legal counsel, accountants and investment advisors to help in the management of the Property where that hiring is deemed reasonable and in the best overall interest of this Living Trust.
    4. The Trustee may retain, exchange, insure, repair, improve, sell or dispose of any and all personal property belonging to this Living Trust as the Trustee deems reasonable and in the best overall interest of this Living Trust, without liability for loss or depreciation.
    5. The Trustee may invest, manage, lease, rent, exchange, mortgage, sell, dispose of or give options without being limited as to term and to insure, repair, improve, or add to or otherwise deal with any and all real property belonging to this Living Trust as the Trustee deems reasonable and in the best overall interest of this Living Trust, without liability for loss or depreciation.
    6. The Trustee may maintain, continue, dissolve, change or sell any business which is part of this Living Trust, or purchase any business on behalf of this Living Trust, as the Trustee deems reasonable and in the best interest of this Living Trust.
    7. The Trustee may purchase, maintain, convert and liquidate investments or securities, at reasonable risk, and for the purpose of generating income and growth, and vote stock in person or by proxy, or exercise any option concerning any investments or securities, as the Trustee deems reasonable and in the best overall interest of this Living Trust, without liability for loss or depreciation.
    8. The Trustee may open or close bank accounts wherever reasonable and in the best interest of this Living Trust.
    9. The Trustee may invest and reinvest the assets of this Living Trust, at reasonable risk, for the purpose of generating income and growth, as the Trustee deems reasonable and in the best overall interest of this Living Trust, without liability for loss or depreciation.
    10. The Trustee may hold un-invested cash and unproductive property where it is reasonable and in the best interest of this Living Trust to do so including, but not limited to, for the purpose of protecting the capital and principal of this Living Trust.
    11. The Trustee may lend funds to any borrower where the loan is adequately secured by sufficient collateral and where the loan is reasonable and in the best overall interest of this Living Trust.
    12. The Trustee may borrow funds from any lender and mortgage or otherwise encumber any asset belonging to this Living Trust where the loan is reasonable and in the best overall interest of this Living Trust.
    13. The Trustee may maintain, settle, abandon, sue or defend, or otherwise deal with any claim where it is reasonable and in the best interest of the Living Trust to do so.
    14. Where there are no other resources available, and where the Trustee is compelled to do so, the Trustee may resolve any legally enforceable debts, taxes, reasonable funeral expenses, burial expenses and any expenses related to the final illness of the Grantor out of the resources of this Living Trust.
    15. The Trustee may make the Final Distribution in any combination of cash and property. Property selection and valuation in the course of the Final Distribution will be made in the good faith discretion of the Trustee and will be binding on all Beneficiaries.
  43. It is incumbent on the Trustee to act as fiduciaries, in good faith and in the best interest of the Living Trust.
  44. All decisions of the acting Trustee, made in good faith, regarding the management of this Living Trust will be final and binding on all parties.
  45. The above authority and powers granted to the Trustee are in addition to any powers and elective rights conferred by state or federal law or by other provision of this Living Trust and may be exercised as often as required, and without application to or approval by any court.
  46. Trustee Compensation
  47. Any Trustee who is not a Beneficiary of this Living Trust will receive reasonable compensation out of the resources of this Living Trust for services rendered. A Trustee who is also a Beneficiary under this Living Trust will serve without compensation.
  48. Trustee Expenses
  49. A Trustee is entitled to be reimbursed out of the income and property of this Living Trust for any and all expenses, including interest where appropriate, where the expense is reasonably and properly incurred in the management of this Living Trust.
  50. Spendthrift Clause
  51. No Beneficiary of this Living Trust will have the power to transfer, sell, assign, or otherwise encumber any assets or property held by this Living Trust prior to the Final Distribution by the acting Trustee. Similarly, the right of distribution held by any Beneficiary under this Living Trust agreement will not be subject to judicial encumbrance prior to the Final Distribution by the acting Trustee.
  52. Tax Identification
  53. For tax purposes, this Revocable Living Trust will be identified by the Grantor's Social Security Number during the lifetime of the Grantor. After the death of the Grantor, the acting Trustee will apply to the IRS for any necessary tax identification numbers.
  54. Homestead Tax Exemption
  55. If the principal residence of the Grantor is held within this Revocable Living Trust, the Grantor maintains the right to possess and inhabit the residence without rent and charge-free, for the duration of their lifetime. This is intended for the purpose of giving the Grantor a beneficial interest and possessor rights in the residence and to ensure that the Grantor does not lose any eligibility for a state homestead tax exemption that they would otherwise qualify for.
  56. Vote of Minor or Adult Dependent Beneficiaries
  57. Where a Beneficiary is a Minor or Adult Dependent Beneficiary and a vote, consent, or decision of the Qualified Beneficiaries is required, then the parent, custodian or guardian for that Minor or Adult Dependent Beneficiary, acting in the best interest of that Minor or Adult Dependent Beneficiary, will be allowed to take the place of that Minor or Adult Dependent Beneficiary for the purpose of that vote, consent, or decision.
  58. Termination of Trust
  59. This Living Trust will terminate where the Property of this Living Trust is exhausted through distributions.
  60. In the event that the acting Trustee concludes that the value of the Property is insufficient to justify the cost of administration and that the aggregate value of the Property is less than $50,000.00 (USD), the acting Trustee may terminate this Living Trust after providing notice to the Qualified Beneficiaries. Where this Living Trust is terminated under this section, the acting Trustee will distribute the Property in a manner consistent with and as described in the distributions sections of this Living Trust.
  61. Abstract of Trust
  62. The acting Trustee may execute an abstract of this Living Trust (the "Abstract of Trust") and may present the Abstract of Trust to a financial institution as proof of the existence of this Living Trust. The Abstract of Trust should not contain full details of the property holdings of the Living Trust nor should it name all of the Beneficiaries of the Living Trust. Any person who is presented with an Abstract of Trust with regard to this Living Trust will be held harmless for relying on the Abstract of Trust.
  63. Governing Law
  64. This Living Trust will be governed in accordance with the laws of the Commonwealth of Virginia.
  65. Severability
  66. If any provisions of this Living Trust are deemed unenforceable, the remaining provisions will remain in full force and effect.
  67. Definitions
  68. For the purpose of this Living Trust the following definitions will apply:
    1. "acting Trustee" means any Trustee that is currently serving as a trustee of this Living Trust.
    2. "Adult Dependent Beneficiary" means an adult beneficiary who is unable to manage their own financial affairs by reason of mental or other disability.
    3. "age of majority" means the age of majority of the jurisdiction where a beneficiary ordinarily resides.
    4. "incapacity" or "incapacitated" means when a person is unable to manage their own financial affairs by reason of mental or other disability.
    5. "Minor Beneficiary" means a beneficiary who is under the legal age of majority.
    6. "Trustee" means any Primary Trustee or Successor Trustee as well as any replacement or additional trustee appointed for this Living Trust.
    7. "Qualified Beneficiary" means any beneficiary that is then entitled to a benefit under this Living Trust.

IN WITNESS WHEREOF, the party hereto has signed their name on this the 28th day of May, 2015 in __________________, Virginia, declaring and publishing this instrument as the Grantor's Living Trust, in the presence of the undersigned witness, who witnessed and subscribed this Living Trust in the presence of the party hereto.


_____________________________
_______________ (Grantor)


SIGNED AND DECLARED by the above party on the 28th day of May, 2015 to be the Grantor's Living Trust, in my presence, in __________________, Virginia, in their presence, all being present at the same time, have signed my name as witness.


_________________________
Witness #1 Signature
_________________________
Witness #1 Name (Please Print)
_________________________
_________________________
Witness #1 Street Address
_________________________
Witness #1 City/State

ACKNOWLEDGEMENT OF NOTARY PUBLIC


COMMONWEALTH OF VIRGINIA

COUNTY OF ____________________

I ____________________________, a Notary Public in and for the said County and State, hereby certify that _______________, having signed this Living Trust, and being known to me (or whose identity has been proven on the basis of satisfactory evidence), acknowledged before me on this day that, being informed of the contents of the conveyance, the Grantor has executed this Living Trust voluntarily and with lawful authority.

Given under my hand and seal, this 28th day of May, 2015.


_______________________________
Notary Public for the Commonwealth of Virginia

County of _________________________

My commission expires: __________________________

Schedule A

The Grantor assigns, conveys and delivers to this Living Trust, all of the rights, title and interest, tangible or intangible, to the following properties, real or personal:

1. ________________________________________.

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