Which do I need, a Will or a Trust?
“Live as if you were to die tomorrow. Learn as if you were to live forever.” Mahatma Gandhi
By James Miskell, Attorney at Law
While it can be difficult to confront your own demise, setting up an estate plan is important to ensure that your wishes are followed and your loved ones taken care of after your death. Your estate plan puts your last wishes, hopes, desires and choices down on paper, in black and white, for all to see. The words on the paper speak for you when you cannot.
There are many estate-planning vehicles available, but two of the most common are wills and trusts. A last will and testament gives instructions as to how to distribute your property and appoints an executor to act on behalf of your estate and see to it that your instructions are followed.
The term living trust describes a trust that you establish while you are living and it can serve as a will substitute. You set up the rules for the trust and appoint a person to ensure that those rules are followed. That person is the trustee. In most situations, while you are living, you receive the benefit from the trust and can serve as the trustee. The trust can also contain instructions as to the distribution of your property upon your death and name a successor trustee who takes your place to make sure that your instructions are followed. A living trust can be revocable; however, when asset protection or Medicaid qualification may be issues, an irrevocable living trust is frequently more appropriate.
A will may appear to be the more straightforward solution, however, a living trust gives you advantages during your life that a will cannot. A living trust serves as a will substitute and can efficiently handle distributions at death without the delay and uncertainty of probate court proceedings. That said, living trusts are not as simple as signing on the dotted line. To be effective and work outside of probate, the trust must hold title to your assets now or upon your death. Establishing your trust takes effort and sometimes the dedication of resources in the present to reduce costs for your loved ones in the future.
An effectively crafted estate plan can provide peace of mind to you and your loved ones. The question becomes: which document is best, a will or a living trust? In the end, it will come down to your needs, the needs of your family, and the nature of your assets. Rather than assuming that a will is sufficient or assuming that a trust is required, begin your planning by assessing your situation and deciding what it is you want to happen. After you have decided a course, then it is time to make the decisions about which documents can best achieve your goals.
Properly answering this question, given your own unique circumstances and objectives, is not a do-it-yourself project. Consult with competent legal counsel regarding the advantages and possible disadvantages to you with each approach. Working with a professional gives you the benefit of experience and insight to avoid pitfalls and ensure that the details are managed. James M. Miskell received his law degree from the University of Georgia in 1993. His Asset Protection, Estate Planning and Elder Law practice is located in Lawrenceville, Georgia. He offers educational workshops and free consultations to assist clients as well as fellow professionals in creating individualized solutions. Visit his website: www.letstalkestateplanning.com
James M. Miskell received his law degree from the University of Georgia in 1993. His Asset Protection and Estate Planning Law practice is located in Lawrenceville, Georgia. He offers free educational workshops and consultations to assist clients as well as fellow professionals in creating individualized solutions.