Probate & Estate Overview

Wills and Trusts - An Overview

A will is a written communication by which a person directs how his or her estate is to be distributed upon death. The estate consists of the property that one leaves behind after death. A trust is the legal right to the beneficial enjoyment of property to which another person holds the legal title. Wills and trusts are commonly used estate planning tools.

The advice and assistance of an experienced wills and trusts attorney are essential to making sure that the measures you choose comply with your state's law and truly carry out your wishes.

Planning for the Future

Estate planning allows you to determine how you would like your assets and property distributed after your death. There are various types of wills and trusts available to do this. These documents provide necessary guidance for many significant decisions such as:

Who should be named as a guardian to care for your minor children
Who will manage your estate and distribute your assets
Who you want to make medical and financial decisions for you in case of incapacity

Without proper estate planning, the probate court will determine how your assets are distributed according to state intestacy laws. In the event that you have no heirs, the state will take ownership of your property. To prevent the state from making these decisions for you, it is essential to have a proper estate plan in place.

Creating a Will: The First Step

The cornerstone document of any estate plan is the will. The person who creates a will is a testator. A will allows you to:

Select the person responsible for carrying out your final wishes (known as the executor or personal representative)
Name a guardian to care for your minor children and manage their property
Direct which property will go to which beneficiaries
Determine who should receive the remainder (residue) of your estate

Each state has its own set of requirements that must be met in order to create a valid will. However, there are some common elements in the various state laws. In general, the testator must have had the mental capacity to create a will. This means that the testator must have understood what property he or she owned, who the property was being left to, and that by signing the will, the testator was creating a binding document to dispose of his or her property at death. Additionally, the will must have been in writing, signed by the testator and signed by at least two witnesses.

Some states recognize oral wills in certain circumstances, such as in cases of imminent death. About half of the states recognize holographic wills, which are made in the testator's own handwriting and signed by the testator.

Choosing a Trust

A trust is a legal property interest held by one person for the benefit of another. The person who holds the legal property interest is the trustee. The person for whom the property is held is the beneficiary. The person establishing the trust is called the grantor. A trust can be revocable or irrevocable.

Revocable trusts may be changed or terminated by the grantor at any time and for any reason
Irrevocable trusts, once established, cannot be terminated or altered by the grantor for any reason

Trusts also may be living, or inter vivos, trusts or testamentary trusts. Inter vivos trusts are made while the grantor is still alive while testamentary trusts are created by the grantor's will and do not come into effect until his or her death.

Trusts allow trustees to direct or control property or other legal rights that are in the trusts. A trustee has a legal duty to make decisions regarding the trust property in the best interests of the beneficiary. Trustees can be held liable for any misuse or mismanagement of trust assets.

There are many different types of trusts that can be used in your estate plan, including:

Life insurance trusts
Self-declaration trusts
Support trusts
Charitable trusts
Spendthrift trusts
Honorary trusts

An experienced trusts and estates attorney can review the different types of trusts with you and help you select the ones that will best fit your estate's needs.

Other Estate Planning Tools

In addition to trusts and wills, other estate planning instruments you may use to execute your wishes include:

Powers of Attorney: allow you to appoint another person to make decisions on your behalf. Powers of attorney are normally used to designate someone to make financial and legal decisions for you, but you can determine the type and scope of the power in the document
Health Care Directives: also known as medical powers of attorney, allow you to appoint a health care agent who will have the legal authority to make health care decisions for you if you become incapacitated and cannot make the decisions for yourself
Living Wills: allow you to state the type and level of medical treatment you do or do not wish to receive if you are too ill or injured to direct your own care

Conclusion

It is best to begin your estate plan sooner rather than later. It is important to remember that wills, trusts and other estate planning documents can be modified one or more times to reflect changes in your life. To begin drafting your estate plan, contact an experienced estate planning attorney in your area.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.