What You Must Know About Wills
Why? Do I need a Will
If you are over the age of 18, and you have property that you want to leave to someone in particular, you need a Will. Regardless of the size of your estate, it is critical that you have at least a simple Will. Executing a valid Will, gives you control over who gets your property and in what proportions, who will manage your affairs as Personal Representative, and who will serve as the Guardian of your minor children, if any. Depending on the simplicity or complexity of your Estate, The Middlesex Estate Planning, Will and Trust attorney Greg Krikorian will discuss, explain and draft the right Will to meet your wishes.
What happens? If I die without a Will.
Without a Will, state law determines how your assets will be distributed. The Court’s default plan for you could conflict with your wishes to benefit your parents, brothers, sisters and/or grandchildren. That plan could also conflict with your wishes to donate to a charity or provide for your partner or friend. Additionally, without a Will, you lose control over who is responsible for managing your estate; the Court will appoint an “administrator.”
Is Probate avoided with a will?
No. A Will needs to be approved by the Court (Probated). Probate can only be avoided through the use of a Trust. The Middlesex Estate Planning, Will and Trust attorney Greg Krikorian believes that taking the necessary steps now, as opposed to ‘in time of crisis’ is a worthwhile cause.
A Trust, is a fiduciary relationship with respect to property under which one individual, called a Trustee, holds legal title to property, with equitable duties for the benefit of another individual, called a Beneficiary.
Does a Trust avoid Probate?
Yes. The “funded” Living Trust is a way to manage your property during your lifetime and pass it on to your beneficiaries at death without the burden of probate court proceedings. “Funding” the Trust is the process of the transferring the desired assets into the name of the Trust. Probate court proceedings can only be avoided through the use of a “funded” Living Trust. The probate court cannot be avoided through the use of a Testamentary Trust.
What is a Revocable Living Trust?
A Revocable Living Trust is a Trust that you set up and fund during your lifetime, and you state in the trust that you reserve the right to revoke your Trust. Revocable Living Trusts are very useful in organizing and managing assets during life, and efficiently transferring assets at death without probate court involvement.
Typically, you will serve as trustee of your Trust while you are able and willing. When you no longer serve as trustee, a successor trustee takes over for you. If you create a Trust within your Will (i.e., within the same document as the Will), it’s called a Testamentary Trust. If you create a Trust outside of a Will (i.e., in a separate document) and while you’re alive, it’s called an inter vivos or Living Trust. A Testamentary Trust comes into being after the death of the Will-maker. A Living Trust comes into being during the Trust-maker’s lifetime (typically when the Trust-maker signs the document and funds the Trust).
Do I benefit from a Trust if I’m not wealthy?
Yes. Contrary to what many people think, a Trust is not just for “wealthy” people. Individuals with very modest estates can benefit from the use of a Revocable Living Trust.
How Does a Living Trust Work?
Middlesex Estate Planning, Will and Trust attorney Greg Krikorian will discuss, explain and prepare a Trust agreement that names the Trustee and the Beneficiaries and defines everyone’s rights and duties. The Trust may, if you desire, stipulate that you retain power to amend or revoke the Trust whenever you want.
Typically, you serve as Trustee of your Trust until you can no longer handle the responsibility, at which time your successor Trustee will take over for you. Your Successor Trustee(s) may be one or more responsible individuals, a bank trust department or an independent trust company. You fund the Trust by transferring assets (real estate, securities, cash, etc. not tax deferred accounts) into the Trust’s name; for example: John Doe, trustee of the John Doe Revocable Trust.
While you are serving as trustee of your Trust, you have the same amount of control over your assets as you did prior to transferring them to your Trust. If you become disabled and are no longer able to handle your financial affairs, the Successor Trustee is directed to use the income and principal of the Trust to pay your necessary expenses. Upon your death, the Trust assets are distributed to your Beneficiaries in accordance with your directions contained in the Trust Agreement, or the Trust can continue for specified purposes for a period of time.
