Wills and Trusts FAQ
What is a will? A will is a legal document which specifies how you want your property distributed upon your death.
Who can make a will? Anyone who is 18 years old and is of sound mind may make a will.
What happens if I die without a will? Your property will pass by intestate succession, which is governed by laws passed by the legislature. Usually your property will pass to your spouse and children, or if they are not living, to other relatives. In rare cases your property could become the State’s property.
What property does my will control? Your will controls only property which passes through probate. This consists of property you own at the time of your death, except that it does not cover property which you own in joint tenancy with someone else. It also would not control property for which you have designated a death beneficiary.
Can I leave my property to anyone I choose? Generally you can. However you cannot exclude your spouse from your will without his or her consent. You may exclude your adult children if you wish.
Can I place any limitations on how my property can be used after my death? Yes, to some extent. For instance you may leave your property in trust to be used for the benefit of a certain person or group. This method is frequently used if the person who is to receive your property is too young or otherwise unable to assume the responsibility of managing money and property.
Does a will increase probate expenses? No, and it may even save expense. Even if you die without a will, it may be necessary for a probate proceeding to occur.
Do young families need a will? Yes. Everyone with children under 18 should have a will or other estate plan. A will can be used to establish a trust to provide for the needs of children. It can also state whom you want to be the guardian of your children. A will can also be used to provide for the care of older parents in the event you are not alive to do so.
How long is a will valid? Until it is amended or revoked by you in the manner provided by law or by the occurrence of certain events. For example, if you marry and have children, a prior will is automatically revoked. Also, if you divorce, all provisions in a prior will in favor of your spouse are similarly revoked.
How often should my will be reviewed? Any changes in your family, finances, state of residence, or your intentions with regard to your property warrant a review of your will to determine if changes are needed. In any event, a review by a lawyer every three to five years is a good idea just in case there has been a change in the law which affects your will.
Who should I name as executor of my will? The executor is the person designated by you to administer your estate. The executor’s job is to gather all of your property together, pay your debts, and distribute your property as you designate in your will. There are no specific requirements for one to serve as an executor, but because of the importance of the position, care should be utilized in selecting an executor. The person you choose should be capable, both physically and mentally, of performing his or her tasks. Before you designate someone as your executor you should discuss it with them to be sure they will be comfortable in assuming these responsibilities. If at the time of your death your designated executor is unable to serve, the court will appoint an alternate designated by you in your will or, if none is available, the court will appoint an executor.
I’m concerned about probate expense. I’ve heard living trusts can avoid probate. Is this true? Yes, a living trust can be used to reduce or avoid probate expenses. A trust is an agreement where one person (trustee) holds property for the benefit of another person (beneficiary). While some trusts can be created by a will, in order to avoid probate a trust must be established during your lifetime. This is called a Living Trust. You can name yourself as trustee during your life. While you are alive the trust will hold and manage your property. After your death your successor trustee will pay your bills and distribute your property as you wish. In this regard the trust serves much the same purpose as probate, except that court involvement is not required. Also, the process can be completed in a shorter time and be done in private rather than in open court.
Don’t you have to be wealthy to set up a trust? No. In fact people of all income levels can benefit from the advantages trusts offer.
Does it cost more to set up a living trust? While it does cost more to set up a trust rather than a will, the initial cost must be compared to the savings realized by avoiding probate. In most cases, a trust is more economical in the long run.
Can I change my trust after it is established? Yes. The typical trust used in estate planning is revocable, meaning it can be changed as long as you remain competent. Such a trust is a very flexible planning tool and can be changed as your lifestyle and finances change.
What if I become disabled and am no longer able to manage my affairs? In this event your trust will continue to manage for you. Your trustee (or successor trustee if you are the original trustee) will continue to manage your affairs for you. This provides an attractive alternative to a court supervised conservatorship. Typically, a trust will offer more flexibility than a conservatorship, allowing your needs to be better met.
Do I retain control of my property if it is in a trust? You can retain as much control as you desire. You can change trustees, change the trust, and even terminate the trust if you wish.
If I have a trust do I also need a will? It is a good idea to have a will to cover any property which may not be included in the trust. This type of will, called a “pour over” will, directs that your property be paid into your trust. If there is no property not included in the trust, it is not necessary to probate this will.
Are there other things I should consider in planning my estate? One of the most important things you should be aware of is special needs planning. If it becomes necessary for you or a loved one to enter a nursing home, in order to qualify for Medicaid benefits you may first have to exhaust all of your resources, leaving nothing to leave to your family. However, through proper planning, it is possible to protect a significant portion of your property. Any estate planning you do should leave you the flexibility to take the steps required to protect your assets. Also, proper planning will enable you to provide for a disabled loved one without jeopardizing their eligibility for government benefits.
Preparing to discuss your estate plan with your lawyer. Before you discuss your alternatives with your lawyer, there are several things you should first consider. A few of these are:
Who do you want to get your property when you die?
Who do you want to name as executor?
What is the approximate value of your property?
If you have minor children, who should be their guardian?
Should a trust for the minor children be considered?
Are any of your heirs incapable of managing their affairs to the extent that a trust should be considered?
If your estate goes through probate, will there be adequate cash in the estate to cover debts and expenses?
Do any of your heirs have special needs which should be taken into consideration?
Do you own property in other states (proper planning avoids opening a second estate in another state)?
Do you own a business which will need management after you die?
Does your spouse have children from a previous marriage?
Should your parents be provided for in your estate plan?
Information to take to your lawyer.
Copies of deeds and titles for property you own.
Any previous wills or trusts you have made.
A list of other property you own.
A copy of any life insurance policies you own.
The approximate values of your property.
Our Estate Planning Questionnaire