1. What is the difference between a will or trust?
A will is a written instrument that outlines how your assets are to be distributed at your death. On the other hand, a trust is a written instrument that describes how your assets are to be managed once they have been funded into the trust. This covers what will happen while you are alive, if you become incapacitated, and ultimately upon your passing.
2. Do I need a will?
A will allows you the ability to legally and formally describe how you want your assets to be distributed. By having a properly executed will in place, you are in control of what happens to your assets after your death. Also, if you have minor children, a will allows you a legal way to appoint a guardian for them if you were to die. While assets are distributed according to your wishes, the probate court will need to be involved to ensure that the correct process is followed.
3. Do I need a trust?
As opposed to a will, a trust allows you to make plans for your assets for while you are alive, while you are incapacitated, and upon your passing. In your trust, you can appoint a successor trustee to manage the assets for your benefit during any times of incapacity. This allows you to select someone to manage your financial affairs and avoids court involvement.
In addition to the benefits to you, a trust allows you to protect the inheritance you are leaving your beneficiaries. A trustee can manage the assets and distribute them at certain intervals, upon the completion of certain events, or some other method. It is your choice. Your beneficiaries do not have to receive them outright. This level of protection can help protect assets from a beneficiary’s credits, divorcing spouse, or poor spending habits.
4. What will happen if I don’t do any estate planning?
If you do not complete any estate planning, most, if not all of your assets will become part of your probate estate. The court will then distribute the assets outright according to state law. There will be no creditor protection for your beneficiaries and you will not get to choose how much each person is to receive, or even who will receive the assets.
Should you become incapacitated for any reason without estate planning, your family will have to petition the court to have someone appointed on your behalf to handle your financial affairs and make medical decisions for you. This can be a costly, time-consuming, distracting, and public process that could lead to infighting with your family.
5. When should I make changes to my estate planning?
Because our lives are constantly changing, you should review your estate planning every few years or so. It is important that you reach out to your estate planning attorney should any of the following happen to make sure that your plan continues to work as designed:
- Death of an individual who has been named as one of your fiduciaries;
- Death of a beneficiary;
- Birth of a family member;
- Change in job;
- Relocation to a new state; or
- The disposal or acquisition of any major asset (house, investment account, etc.).