Do I Want a Will or a Trust?
The Statements below are generalizations and may or may not be applicable in any particular fact situation.
WILL AND TRUST DEFINITIONS
PROBATE - The method by which legal title is passed from a decedent to his or her heirs as approved by the Court, through Will, Statute, or occasionally by Agreement of the heirs.
WILL - Generally a document that dictates the disposition of the assets of its creator upon that creator’s death. It Must Be Probated to be effective. It is revocable during its creator’s lifetime. In order to clear title to the assets it must be approved (probated) through a Court proceeding and title to the assets conveyed to the parties indicated in the will either by Court order or by an individual appointed by the Court (an Executor or Administrator).
TRUST - A fiduciary relationship with respect to assets, generally created by document. A Trust Avoids Probate, and assets are managed and pass to Beneficiaries according to the terms of the Trust. A Trust may be revocable or irrevocable according to the terms of the Trust. The person named in the document as Trustee is a fiduciary who manages and distributes assets according to the terms of the Trust.
DO I WANT A WILL OR A TRUST?
Where a will generally disposes of property upon death of the Testator, a Trust generally provides management of the property over a period of time and disposition of the property upon some later occurrence as dictated by the terms of the Trust. A Trust may be created before, at the time of death, or even after the death of the Trustor. In many instances a Trust for two Spouses may cost about the same as probate for one Will.
A WILL passes through PROBATE, A TRUST avoids PROBATE. - The Trust can work for multiple parties with no probate at all, whereas if wills are used each individual would have a Will to run through probate upon their death (i.e. one per person probate v.s. one trust fee). So a married couple would pay once for creation of a single Trust for the two of them, whereas they would pay for a will each plus upon the death of each someone would have to pay the cost of probating one will each. In this situation, the remaining spouse would pay a probate cost for the first deceased Spouse’s Will. While a Will is much cheaper than a trust, the cost for one probate is close to the same price as a Trust.
IF YOU OWN PROPERTY IN MORE THAN ONE STATE - you must probate a Will in each state where you own property, so a Trust is recommended in that situation because it avoids probate for anything placed into it.
IF YOU HAVE CHILDREN FROM MORE THAN ONE MARRIAGE – You need at least a will because inheritance laws vary from state to state. In Texas, if there are children from a previous marriage of decedent, they inherit most of decedent's separate property and a large part of their community half. You may want a trust to insure that your spouse gets full use of your estate, but then it goes to your children, not your Spouse’s when that Spouse marries or dies.
CAN I PROBATE GRANDMA’S WILL NOW THAT SHE IS IN THE NURSING HOME?
The answer is NO! I have had people come to my office wanting to do this. You CANNOT probate a will until the person is deceased!
WHAT DOCUMENTS DO MY PARENTS NEED AS THEY AGE?
The basic documents listed under “What Other Documents Do I Need for My Estate” are below, but drafted to cover eligibility for government services and the ability to care for them as they age. Social Security and IRS powers of attorney can be added to the list where necessary. Other documents may be required depending upon their financial and health situation. The optimal situation is to plan before they need nursing home care or assisted living as some government programs have a 5 year lookback rule from the time you apply.
WHAT OTHER DOCUMENTS DO I NEED FOR MY ESTATE?
The basic documents needed for a simple complete Estate Plan are:
- Will (and possibly Trust with Certificate, but caution must be taken with the elderly to provide that a will or trust does not lock one or both of them out of eligibility for govt. assistance such as Medicaid, SSI, or VA)
- Financial Power of Attorney
- Medical Power of Attorney
- Directive to Physician
- Declaration of Guardian in Case of Later Need
- You may also want a Do Not Resuscitate Order, This is a medical decision so it is recommended you consult a physician to provide the DNR if the physician deems advisable.