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Wills & Trusts

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Wills and trusts are legal instruments used in estate planning to manage and distribute a person’s assets and property upon their death. While both serve similar purposes in facilitating the transfer of assets, they have distinct characteristics and are often used in different ways.

Wills

A will, also known as a last will and testament, is a legal document that outlines an individual’s wishes regarding the distribution of their assets and property after their death. It allows individuals to designate beneficiaries, specify how their assets should be distributed, and appoint an executor to carry out their wishes.

  • Key Elements
    • Beneficiaries. A will identifies who will inherit the deceased person’s property, assets, and possessions.
    • Executor. The will often names an executor, who is responsible for managing the deceased’s estate, paying debts, and distributing assets as specified in the will.
    • Guardianship. In a will, individuals can designate guardians for minor children or dependents, specifying who will care for them in the event of their death.
    • Funeral and Burial Instructions. A will may include instructions regarding funeral arrangements and the disposition of remains.
  • Probate. Wills typically go through a legal process called probate, during which a court validates the will, ensures its authenticity, and oversees the distribution of assets. Probate can be a public and time-consuming process, and it may involve court fees and legal expenses.

Trusts

A trust is a legal entity created to hold and manage assets for the benefit of specific individuals or entities, known as beneficiaries. Trusts can be established during a person’s lifetime (living trusts) or through their will (testamentary trusts). Trusts can also be revocable or irrevocable (i.e., capable of being revoked or not capable of being revoked by the person who creates them during their lifetime).

  • Key Elements
    • Grantor/Settlor. The person who creates the trust and funds it with assets is known as the grantor or settlor.
    • Trustee(s). A trustee is responsible for managing and administering the trust in accordance with its terms and for the benefit of the beneficiaries. A trust may have more than one trustee, who typically must agree on actions taken to manage, administer, or distribute the trust’s assets.
    • Beneficiaries. Trusts specify who will receive the trust assets and the conditions or terms under which they will receive them.
    • Terms and Instructions. Trusts allow for more flexibility in specifying how assets are distributed, including conditions, timelines, and purposes.
  • Avoiding Probate. One of the primary advantages of trusts is that they can help avoid probate in many cases. Assets held in a trust generally pass directly to beneficiaries without the need for probate court involvement. This can save time and costs.
  • Privacy. Unlike wills, trusts are typically private documents, and the details of the trust and its assets are usually not part of the public record.

Choosing Between a Will and Trust (or a Combination of Both)

  • The choice between a will and a trust depends on an individual’s specific circumstances and goals. Some factors to consider include:
  • The complexity of the estate. More complex estates with numerous assets and beneficiaries may benefit from the flexibility of trusts.
  • The desire to avoid probate. If avoiding probate is a primary goal, one or more trusts may be a suitable option.
  • Asset protection and management. Trusts can provide ongoing management of assets and protection for beneficiaries, such as minor children or individuals with special needs.
  • Simplicity. For straightforward estates, a will often may suffice.

Estate planning typically involves a combination of wills and trusts, as well as other tools such as powers of attorney and healthcare directives, to achieve the desired distribution of assets and the protection of one’s interests. Consulting with an estate planning attorney is advisable to determine the best approach for your individual needs and goals.

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