Wills & Trusts
A will is what is called a “testamentary” document. This means that it has no effect while you are alive, but if written correctly, it becomes a valid, binding legal document after you pass away. Many people believe that if you have a will, you will avoid Probate, but this is not true. Only the Probate Court can legally and finally interpret a will. Wills must be written in very specific ways or they will not be honored by the Probate Court. These specific requirements are detailed and vary for each State. Some people believe they can prepare a will without the assistance of a lawyer, or that, on their own, they can change the will they got from a lawyer. In general, this leads to a determination that the person passed away without a will, and it means the estate will not be probated the way the person thought it would. Note that a will is the place to name the guardian for your minor children. The court retains jurisdiction over the children until they reach 18.
What is a Trust?
A trust is an alternative way of providing for your care while you are alive, and for the transfer of your assets after you are gone. A trust can be included in your will, but that means that some of the most important advantages will be lost. The better approach, generally, is to create a revocable living trust. This is a document that takes effect while you are alive. It plans for when you are sick and also for after you have passed away. It is “revocable”, which means you can continue to modify it as your life changes. Because a revocable living trust is a creation of contract law, it can be written any way you need it to be written in order to accomplish your goals. In other words, it can give you maximum flexibility, which can be helpful if you have a special situation such as a second family or a need to take care of special people. It also can take care of you while you are alive, as well as after you are gone.
One of the nicest things about a trust is that it can allow you to separate responsibilities so that, for example, the person who is good with children need not also be good with money. The job of guardian and the job of trustee can be separated. Additionally, we can use a trust to take care of all the kids until the youngest is an adult, and then we can use the trust to make sure their inheritance is protected. Of course, another great aspect of a trust is that it avoids the expense and complications of probate. If done right, it all unfolds in private and confidentially in the lawyer's office.
Probate can cost a lot of money and the more disorganized your estate is, the more it is likely to cost. The trust can help you organize everything so it is well planned out. As a result, even though it costs a little more now, ultimately you are saving money and helping the people who will be helping you.
To speak with Todd Griffee, for a will or trust, call us at (816) 232-8001.