Should You Get a Will or a Living Trust?

Wills or living trusts are essential documents that matter greatly. It is vital to ensure that the distribution of assets is easy and fair after someone passes away. People want to make things as easy as possible for their family, and documents such as a will or trust significantly affect your family’s experience.

Probate and What Triggers It

Whether you should get a will or a living trust comes down to avoiding probate. Probate, in simple words, is the process of distributing assets under court supervision. Many people dislike the process of probate, and for the most part, they may be right.

Probate means that if an individual passes away and leaves behind assets, the court will approve the transfer of their assets to their heirs. Hence, the probate process involves a judge watching over your assets while enablers are valuing them, gathering them, and distributing them.

If an individual has a will, then a probate will be unavoidable. Many people believe that if you have a choice, your assets will be distributed according to the instructions in the will. However, this isn’t true.

Having a will informs the judge on how the assets will be distributed. If an individual passes away without a will in place, the judge will determine their asset distribution according to the state’s laws. Each state has different rules that dictate the issuance of a deceased person’s assets when they pass away without a will.

If you have a will, the judge won’t look at the state’s laws when determining the asset distribution. Instead, the judge will look at the will. The probate process will therefore follow the same process regardless of whether you have estate planning documents or a will. Thus, if you wish to avoid probate, getting a will may not be the best option. 

There are several reasons why people wish to avoid probate. A probate is a public matter. If a person passes away and has a will, the will gets lodged with the court. This means that the will is general information and anyone can choose to look it up in court. In other words, all information in the will becomes public knowledge.  

Eventually, as the probate process works into the court, the inventory of all the assets will also be displayed and become a public record. A probate process for a simple estate also takes about 18 months; therefore, many people like to avoid the long time duration of the process. If you have a much more complicated estate, such as businesses and multiple properties, then the process time duration can be longer.

The assets also take very long to work their way through the process. If an individual owned multiple properties in different US states, then there needs to be a probate in each state. This can infuse further complications for your family. These are reasons why many people do not want to opt for probate.

Will vs. A Living Trust – The Difference

A will simply tells a judge where you want your assets to go. On the other hand, a living trust is different, and it is a way to avoid probate. In a living trust estate, you, as a creator, will transfer ownership of your assets out of your name and into the name of the trust. 

Therefore, the individual who creates the trust is no longer the owner of their assets. Remember that being the owner of assets is the trigger that initializes probate. Passing away while owning assets can trigger probate, which is why attorneys will create a scenario with the help of a living trust so that the individual no longer holds any assets.  

Once an individual transfers their assets to a living trust while they are alive and able, they serve as the trustee of their trust. In a trust agreement, a long list of powers is given to whoever acts as the trustee of the trust.

Once an individual transfers their ownership, they can continue the routine activities of their day without giving too much control over their assets. They manage them similar to as you would as the owner of the asset.  

In the trust document, the owner or trustee usually names someone to be the successor trustee. You will select this person to step in as the trustee after the individual is either unable to manage their assets or deceased.

The successor will then have all the trustee’s powers while they were the trustee. The successor trustee’s work would be twofold. They will have to step up and take control of the assets and also manage them in the short term. The successor has to make sure that the distributions of the assets happen according to the provisions that the trustee put in the trust.

Key Difference to Note

An important difference between a will and a living trust is as follows. A will tells the judge how the distribution will follow. Once the probate matter is completed, the judge will sign an order and distribute everything to the people.

A trust allows an individual to have much more control over the beneficiaries and how they will receive the assets. The successor trustee will make the distributions happen but will be bound by the provisions that the owner of assets has put in the trust.

Once the owner of the assets transfers the title of their name to the name of the trust, then the trustee will step up, administer and manage everything according to the provisions. An attorney will guide you toward the distribution schemes that you can use.

Be Creative with Your Estate Planning in Queens, New York

If you want to create provisions in your trust that favor your preferences, then you must have an expert attorney that manages it so that they comply with the state laws of New York. Our lawyers have been practicing in living trust and matters with wills for years. Call us if you need expert consultation and get excellent services.

Contact us today and determine the best ways you can achieve rightful Living Trusts, Probate, and Estate Solutions!