1.4.1 Referred to as “Living Trusts”

1.4.1.1

Funded trusts are used to circumvent probate:   “O’s will might be described as a document executed by him during his lifetime that will control the devolution of some or all of his property from and after his death, but that is subject to change and revocation by him as long as he lives.   Such a description, however, if set forth in any one of several revocable inter vivos property arrangements that are now widely recognized as non-testamentary in character, can be carried out without subjecting the property involved to probate administration on O’s death.

The revocable inter vivos trust is one of the widely employed vehicles in the avoidance of probate.   Attacks on this type of trust, as being testamentary insofar as the trust provides for the disposition of property from and after death of the settlor, have been made from time to time, but with little success.”   Casner, “Estate Planning – Avoidance of Probate,” 60 Columbia Law Review 108, 108-9 (1960).

 1.4.1.2

Maryland appears to follow the general rule that revocable trusts are not testamentary and therefore do not need to follow the execution requirements imposed by Estates & Trusts Article § 4-102.   See Howard v. Hobbs, 125 Md. 636 (1915) (self-forgiving mortgage not testamentary) and Brown v. Fidelity Trust, 126 Md. 175 (1915) (Transfer to revocable trust is a completed transfer.)   See, however, the discussion above related to the necessity of a separation of legal and equitable title.