Should I write a Will or go to an attorney for a Living Trust?
A considerable number of our clients often ask us if they should get a living trust or write down their Will. This is an excellent question for your attorney. But I will discuss my personal point of view on this subject.
Understanding the difference between a trust and a will is crucial.
Do you know what probate is?
Wikipedia defines probate as "a legal process through which the will of a deceased person is accepted and handled by a court. The probate process includes confirming that the will, paying the dead person's debts, and distributing the deceased person's money and property as directed by the will"
In other words, the court decides how to execute your "Will". So, having a Will is not sufficient.
So, why should you consider a "living trust"?
To avoid costly probate (court process)
Ok, got it.
So, should I only have a "living trust"?
A living trust cannot name an executor or a guardian for your dependents kids.
You really need both of them. Trust and a Will.
Basically, will takes effect after someone dies but a living trust takes effect right away.
Let's take a close look at a Will
- Recognizes who gets your property at your demise and names an agent to do your desires.
- May go to probate— the court makes the decision about how to distribute your assets and other matters.
- You get to name the guardian for your children and you get to decide about the funeral arrangements.
- Do note that this will become a public record.
Now, let's take a look at the Living Trust:
- This won't become a public document. Your privacy is protected.
- Can be set up to properly distribute wealth as per your wish. You can give before or after your death.
- No need to go to probate. Your write down your wishes and a Living Trust is set up to execute your wishes.
- You can also plan for taxes or take care of disabled dependents.
- You can add a pour-over will to take care of forgotten assets.
Do Note that you should update your living trust every few years, especially when there is major change like a marriage, divorce or have children.
There is a lot more to this story but I covered some important points here.
We can recommend an attorney who can help you draft all these documents properly. Give us a call if you need some help with this. Ask for a referral to an Estate Planning Attorney.