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In this March’s Ask the Expert, Attorney, Lisa Hostetler Brown, founder of LawyerLisa, and certified specialist in elder law, shares insights to help us and our loved ones navigate the elder law and long-term care maze by comparing the benefits of a will versus a trust.
Concern: I have a will, but I’ve heard that I might really need a trust. How do I figure out what is best for me?
Expert Advice: Let’s start with what these documents are and how they work.
Your will is a legal document that is submitted to the Probate Court after you pass away, along with the required Court documentation, requesting appointment of the person you name as your Personal Representative. The Judge will ultimately decide who actually gets appointed over your estate, the compensation they may receive, whether creditors are entitled to be paid from your estate, how long the Personal Representative has to wait to distribute assets and how that distribution is to occur. The Court will also mandate the publication of notice of your death in the newspaper calling for anyone who may have a claim against you to file it. All of the paperwork that your Personal Representative files with the Probate Court will become part of the public record and can be researched by anyone who is interested in learning about your family, your assets, what your will said, and how distributions are made from your estate.
Your trust is a living document that you can create and implement while you are alive that will hold your assets. For this type of trust (a revocable living trust), you are the Trustee and you control all of the assets and can do what you want with them. If you become sick or incapacitated, your Successor Trustee can step in and easily manage your affairs and pay for the things you need. When you pass away, your Successor Trustee can get immediate access to your assets to pay for any immediate expenses (such as your funeral) and can pay for ongoing expenses (such as your mortgage) during the administration of the trust.
One of the big benefits of having a trust is that your surviving family members will not have to go through the probate process when you pass away. If you are married and create a trust now, not only will your surviving spouse not have to go through the probate process when you pass away, but when they pass away, your children or other beneficiaries will also get to avoid it.
Probate can sometimes bring out the worst in families. As an experienced probate litigation attorney, I have seen so many families fight each other during the probate court process. The fact is, it’s so much easier to fight each other when there is a will that is being probated. They are already in Court! The process is long; it can be complicated; everyone may not understand what all the forms are; many times there are forms sent to various family members to sign that need explanation from their own lawyer. All of this can lead family members to feel like they need to protect themselves, which often leads to multiple lawyers doing what they do…advocating for their client at the expense of a complication-free process and sometimes also at the expense of your wishes.
Wills are more like a request to the Probate Court and current Judge to appoint someone you desire to have your assets distributed in the way you specified. The entire administration process is still based on what the laws require to be done and how each Judge would like documents to be filed. A trust is quite the opposite. You have lots of options for how to set up what you want to happen and when. A trust is administered without Court involvement. Your Successor Trustee will not have to ask for permission to carry out your wishes that you have indicated in the Trust. And, best of all, the various court forms that have to be completed and filed are eliminated. The list of trust benefits is quite long and will be different for each person, based on their particular situation.
Don’t want your nosey Aunt to know how much money you had? Get a trust.
Don’t want your children who live out of state to have to jump through hoops with the local Probate Court? Get a trust.
Own multiple properties, especially in different counties or state? (Each county will require a separate probate filing) Get a trust.
Don’t want to chance your ex-spouse controlling money you leave to your children? Get a trust and name your own trustee over those assets.
Don’t want scammers visiting your surviving spouse because they know about a large inheritance? Get a trust.
Want to keep assets you own private? Guns, gold, jewelry? Get a trust.
Remember, everyone’s situation is unique. You will need to utilize the plan that is best for you and your family. But one thing is true for everyone, having a plan (and a trust) in place before you need it can make a world of difference.
To submit your Elder Law Concern to Ask the Expert, please email your Concern to Melissa@LawyerLisa.com. All Concerns are subject to re-writing by the Expert and all Expert Advice is general in nature. For legal advice regarding your situation and to have your specific questions answered, please contact LawyerLisa, LLC at info@LawyerLisa.com to schedule a consultation. For additional information, please visit https://www.LawyerLisa.com/lcp Lisa Hostetler Brown is a Certified Elder Law Attorney, certified by the National Elder Law Foundation, ABA accredited.