Wills and Trusts

 

 

What is the difference between a Will and a revocable trust?

 

Preparing a Will and a revocable trust are two different ways to plan for the distribution of your assets after you pass away. A Will is a legal document that outlines your wishes regarding the distribution of your property after you die. It allows you to name beneficiaries to receive specific assets, and to name an executor to manage your estate and carry out your wishes. A Will only takes effect after your death, and can be revised or revoked during your lifetime.

​

On the other hand, a revocable trust is a legal entity that you create during your lifetime to hold and manage your assets. It can be changed or dissolved at any time while you are alive.  You can name yourself as the trustee, and then name a successor trustee to take over after you die. While you are alive, you have complete control over the assets in the trust, and can add or remove assets as you wish. After your death, the assets in the trust are distributed to your beneficiaries according to the terms of the trust. One key difference between a Will and a revocable trust is that a Will must go through probate, which is a court-supervised process of validating the Will, paying any debts and taxes, and distributing the remaining assets to the beneficiaries. This process can take several months to a year or more, depending on the facts of the case, and can be expensive.

​

In contrast, a revocable trust can avoid probate, since the assets in the trust are already owned by the trust and not by you personally. This can make the distribution of assets faster and less expensive for your beneficiaries. Another difference is that a revocable trust can provide greater flexibility and privacy than a Will. Since the trust is not a public record, the terms of the trust and the distribution of assets can remain private. Also, a trust can be structured to provide ongoing management of assets for beneficiaries who may not be able to handle a large inheritance on their own.

​

Overall, whether you choose to prepare a Will or a revocable trust will depend on your individual circumstances and goals. It's important to consult with an attorney who specializes in estate planning to help you determine the best approach for your situation.

 

I'm not wealthy, do I still need a Will?

 

In most cases, a Will is one of the most important documents that you will sign during your lifetime. If you are married, own property, or have children, Wills are very helpful in ensuring that your estate is passed to your loved ones in the most cost-effective manner. Wills are not just for those who are wealthy, they are an effective tool for people who wish to protect their family and those that they love.

 

• Without a Will, state law governs who inherits your property;

• Without a Will, your family may need to have a court determine heirship in your estate, which can be very expensive;

• With a Will, you decide who inherits your property and administers the affairs of your estate;

• With a Will, you protect your family from expensive proceedings caused by intestacy (dying without a Will);

• A Will protects your family whenever you die;

• A Will makes administration of your Estate after death much more simple;

• A Will does not mean you are planning to die soon.

 

 

What is a Codicil?

 

A Codicil is a supplement or addition to a Will, not necessarily disposing of the entire estate but modifying, explaining, or otherwise qualifying the Will in some way.  Codicils are effective for amending or revising portions of your Will.  It must be executed with the same formality necessary for a Will.  When admitted to probate, the Codicil becomes a part of the Will.

 

 

A Will should be reviewed if:

 

• You get married or divorced;

• You move to another state (probate law is state specific);

• The person named in your Will as Executor has died or is incapacitated;

• A person named in your Will to receive property has died or is incapacitated and cannot manage property;

• You change your mind about the provisions in your Will.

 

 

What is a "Living Will"?

 

A living will, also known as an advance directive, is a legal document that outlines your wishes for medical treatment and end-of-life care if you become unable to make decisions for yourself.

​

In a living will, you can specify the medical treatments or procedures you would want or not want to receive, such as resuscitation, artificial nutrition and hydration, and mechanical ventilation. In a separate document, you can also appoint a healthcare proxy or medical power of attorney, who can make medical decisions on your behalf if you become incapacitated and unable to make decisions for yourself.

​

A living will can provide peace of mind and clarity for both you and your loved ones during a difficult time. It can ensure that your wishes are respected and followed, and that your healthcare decisions are made in accordance with your personal beliefs and values.

​

It's important to note that a living will is different from a traditional will, which outlines your wishes for the distribution of your assets after you pass away. A living will only takes effect while you are alive and unable to make decisions for yourself.

 

Where should I store my Will and other estate planning documents?

​

You should store the original Will and estate planning documents in a safe place where they will be easy to find if they are needed. Access to your estate planning documents is essential.  The best and most convenient place to store your Will and other estate planning documents is in a fireproof safe in your home.  It is a good idea to tell some one where your documents are stored in the event that they are needed.  

 

 

Other storage options:

 

• Place the Will in safekeeping at the County Clerk's Probate Office.  There is typically a one time fee for this service. The Will remains secured in a vault until you claim the document or until an authorized person claims it upon your death in order to probate the Will.  

• Place in a safe deposit box at a financial institution. Storing your Will and estate planning documents in a safe deposit box at a financial institution is not the most preferable choice due to the fact that access to the documents is limited, which can be problematic in some situations.  If you choose to place your Will in a safe deposit box, you need to list additional persons that will be able to access your safe deposit box and withdraw your Will.  A Motion and Court Order will be required for the Will to be removed from the safe deposit box if no other parties are listed on your safe deposit box account.

 

 

What does it mean when it says someone died intestate?

 

Intestate is the term for one who has died without a valid will.  If a person dies intestate, then state law determines how their property will be distributed.  

 

 

What does the term, "probate" mean?

 

Probate is a process of distributing someone's property after his or her death. It provides an orderly way to transfer real and personal property. The probate process may be used whether someone has left a Will or not. 

 

 

What does the term, "Testator" mean?

 

Testator is the term for a person who dies leaving a Will.  

 

 

What does the term, "Distributee" mean?

 

A Distributee is typically a beneficiary who is entitled to receive property in a Will.  An "heir" is the term for one who obtains property from the estate of an intestate decedent.

 

Whether you just need a simple Will, revocable trust or more complex estate planning, Estes Law Office, P.L.L.C. excels at preparing a customized estate plan that protects you, your loved ones, and protects your estate.  If you have questions about your estate plan, schedule a free consultation with Estes Law Office, P.L.L.C. today.

 

 

Powers of Attorney and other Disability Documents

 

Due to the fact that disability affects a large percentage of people at some point during their lifetime, it is important to have disability documents in place as part of your estate plan should you ever become incapacitated.  If you do not have the proper disability documents in place, you may need to have a Court appoint a guardian for you if you should ever become incapacitated.  Powers of attorney are an effective tool in most cases to avoid guardianship.

 

Guardianships are typically not preferable due to the fact that they are (1) very expensive and (2) a person lacks control of who the Court will appoint as their Guardian.  It is always better for you to choose who will manage your affairs.  The following disability documents are recommended:

 

• Statutory Durable Power of Attorney (financial power of attorney) - appoints an agent to manage your finances upon your incapacity.

 

• Medical Power of Attorney - appoints an agent to communicate healthcare decisions upon your incapacity.

 

• Directive to Physicians (Living Will) - communicates your decision as to whether or not you wish to be kept on life support if you are deemed to have a terminal or irreversible medical condition.

 

• HIPAA authorization form - allows you to name individuals who can have access to your medical information so that your health care provider will not have any reservations about sharing your protected medical information with them.

 

• Declaration of Guardian - names a guardian in the event that you are incapacitated and need to have a guardian appointed by the court on your behalf.

 

If you have any questions about powers of attorney or other disability documents, contact our office today.  We'll be happy to discuss them with you and explain how you can best protect yourself and your family.