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By Debbie Forté
One main difference between a Will and a Trust is that a will goes into effect only after you die, while a trust takes effect as soon as you create it.
Another difference between a Will and a Trust is that a Will must pass through probate. That means a court oversees the administration of the will and ensures the will is valid and the property gets distributed the way the deceased wanted.
By contrast, a trust can be used to begin distributing property before death, at death or afterwards.
What Is a Will?
A will is a written document—signed and witnessed—that appoints a legal representative or executor to carry out your wishes; and directs how your property (estate) will be distributed at the time of your death to your named beneficiaries. It is revocable and can be amended at any time during your lifetime. It also allows you to appoint a guardian for your minor children.
A Will covers any property that is only in your name when you die. It does not cover property held in joint tenancy or in a trust.
What Is a Living Trust?
A living trust provides lifetime and after-death property management. If you are serving as your own trustee, the trust instrument will provide for a successor upon your death or incapacity. Court intervention is not required. Livings trusts also are used to manage property. If a person is disabled by accident or illness, the successor trustee can manage the trust property. As a result, the expense, publicity, and inconvenience of court-supervised distribution of your estate can be avoided.
A trust, on the other hand, covers only property that has been transferred to the Trust. In order for property to be included in a trust, it must be put in the name of the trust. Listed in the trust and transferred by Quitclaim Deed with the county recorder’s office.
A trust passes outside of probate, so a court does not need to oversee the process, which can save time and money. Unlike a will, which becomes part of the public record, a trust can remain private.
Wills and trusts each have their advantages and disadvantages. For example, a will allows you to name a guardian for children and to specify funeral arrangements, while a trust does not. On the other hand, a trust can be used to plan for disability or to provide savings on taxes. Your elder law attorney can tell you how best to use a will and a trust in your estate plan.
Who Needs A Trust And Who Needs A Will?
A trust is always recommended when you are over the age of 55, with real property in your name and assets worth transferring to your loved ones without probate. A trust is always backed up by a “Pour Over Will.” Which means that assets and property you obtain after the trust is created, and you failed to fund them into your trust, will automatically be “poured” over into your trust when you die.
A Will can be sufficient if you are a renter, and own no real property, with only moderate tangle items and assets.
What Is A Health Care Directive?
A Health Care Directive (also called a living will) is a document that express your wishes to medical personnel and your loved ones what treatments you will allow in the event of total incapacity, coma or life threatening illnesses. In example, if you become brain dead with no chance of recovery you can elect to not be put on life support or have life support removed. You can elect which surgeries, medications and treatment plans you support or wish to decline in the event these decisions have to be made.
It allows you to name an agent(s) to also be able to make medical decisions for you as well in the event you are unable to.
What Is A Durable Power Of Attorney?
A power of attorney is a legal document that gives someone you choose the power to act in your place to handle your finances in case you ever become mentally or physically incapacitated. A durable power of attorney simply means that the document stays in effect if you become incapacitated and unable to handle matters on your own.
With a valid power of attorney, the trusted person you name will be legally permitted to take care of important matters for you — for example, paying your bills, your banking needs, managing your investments, or directing your medical care — if you are unable to do so yourself. Your agent can handle mundane tasks such as sorting and opening your mail, depositing your Social Security checks, as well as more complex jobs like watching over your retirement accounts and other investments, or filing your tax returns. Your agent doesn’t have to be a financial expert; just someone you trust completely who has a good dose of common sense.
What Is A Hippa Authorization And Who Needs One?
The Health Insurance Portability and Accountability Act (HIPAA), is a Federal law that required the establishment of national standards to protect the privacy of patients’ health care information. The Privacy Rule, which took effect on April 14, 2003, regulates the use and disclosure of “Protected Health Information.”
This authorization allows your doctor or hospital to disclose protected health information to a third party specified by you (your agent–spouse or family member) to obtain necessary information in order to make medical decisions for you in the event of you being incapacitated and unable to make decisions for yourself.
What Is Probate?
Probate is the legal] process whereby a will is “proved” in a court and accepted as a valid public document that is the true last testament of the deceased.
A probate also officially appoints the executor (or personal representative), generally named in the will, as having legal power to dispose of the testator’s assets in the manner specified in the testator’s will. However, through the probate process, a will may be contested.
The probate process includes:
- proving in court that a deceased person’s will is valid (usually a routine matter)
- identifying and inventorying the deceased person’s property
- having the property appraised paying debts and taxes
What Is A Transfer On Death Deed (Tod) And Who Can Use It?
The new Transfer on Death Deed (or Beneficiary Deed) is an easy and inexpensive way to bypass probate court when you leave real estate without a Trust or a Will. It’s like a regular deed used to transfer real estate to your beneficiaries, with a crucial difference: It doesn’t take effect until your death.
When you die, your real property is automatically transferred to your beneficiaries. All states do not allow this but California is one that does.
What Is An Estate; And What Happens To It If I Don’t Have A Will Or Trust?
An “Estate” is simply the legal term used to describe all of your assets and tangible items you own. This includes:
- Your home and any real property you own
- Furniture and furnishings
- Clothing, jewelry and personal items
- Car, Boat, Motorcycle
- Bank and savings accounts
- Retirement and pension funds
- Stock, Bonds and IRA’s
- Interest in a business
Can I Leave Real Property To Minor Children?
The short answer; YES
Parents, grandparents, uncles and aunts commonly leave real property and other large assets to minor children. When probate is opened the court will assign a custodian to manage the minor’s inheritance.
A custodial account is established for a minor child under the Uniform Transfer to Minors Act (UTMA) or Uniform Gifts to Minors Act (UGMA). These are usually established through a bank and a custodian is named to manage the funds. But if the amount is significant (say, $10,000 or more), court approval may be required. In any event, the child will still receive the full amount at legal age.
A better option is to set up a children’s trust in your will and name someone to manage the inheritance instead of the court. You can also decide when the children will inherit. But the trust cannot be funded until the will has been probated, and that can take precious time and could reduce the assets. If you become incapacitated, this trust does not go into effect… because a will cannot go into effect until after you die.
Another option is a revocable living trust, the preferred option for many parents and grandparents. The person(s) you select, not the court, will be able to manage the inheritance for your minor children or grandchildren until they reach the age(s) you want them to inherit—even if you become incapacitated. Each child’s needs and circumstances can be accommodated, just as you would do. And assets that remain in the trust are protected from the courts, irresponsible spending and creditors (even divorce proceedings).
Can I Name A Guardian For My Minor Children In My Will And/Or Trust?
You can name a guardian for your minor children in your Will.
What Happens To Credit Card Debt When You Die?
Essentially there are two main factors that will determine who is responsible for your credit card debt after you die: whose name or names are on the account and where you live.
Whose name is on the account?
If the card is only in your name, your estate is responsible for the debt. As the estate goes through probate, the executor or administrator of the estate will make a determination of the assets and debts of the estate and pay off debts in the order that state law requires. If assets remain after that, they will be distributed to heirs according to your will or, if you don’t have a will, state law.
Remember that not all assets go through probate, however; things like insurance proceeds, IRAs, and 401(k)s usually go to beneficiaries without being counted as assets in the estate; accordingly, beneficiaries receive those regardless of debts, and an executor or administrator of an estate can’t use them to pay off credit card debt.
If you share your credit card account with someone else, i.e., someone else also signed the application, that person could be held responsible for the debt; if there is another person listed on the account but only as an authorized user, they will not be responsible for the debt. An authorized user is generally someone who can use the card but didn’t sign the application and doesn’t pay the bills.
What happens if the estate’s assets don’t cover the debt?
If your estate is solely responsible for the debt and there isn’t enough money in your estate to cover it, the debt ends there. The credit card company has to write it off, and neither your heirs nor anyone else can be held responsible for it.
What Is The Difference In “Joint Tenancy”, “Tenancy In Common” And “Right Of Survivorship”?
When two or more people own property like a home, either as joint tenants or tenants in common, each individual owns a share (or interest) of the entire property. This means that specific areas of the property are not owned by any one individual, but rather shared as a whole. While joint tenants with survivorship are similar to tenants in common in many ways, particularly the right of possession with respect to the property, there are some important differences with respect to what happens when a co-owner dies.
Ownership Interest
While none of the owners may claim to own a specific part of the property, tenants in common may have different ownership interests. For instance, Tenant A and Tenant B may each own 25 percent of the home, while Tenant C owns 50 percent of the property as a whole. Tenants in common also may be created at different times; so an individual may obtain an interest in the property years after the other individuals have entered into a tenancy in common ownership.
What is a joint tenancy?
If they opt for joint tenancy, the deed to the property will then name the two owners as joint tenants. Then if one person dies, the other person will automatically become the full owner of the property.
A joint tenancy is broken if one of the tenants sells his or her interest to another person, thus changing the ownership arrangement to a tenancy in common for all parties. However, a tenancy in common may end if one or more co-tenant buys out the others; if the property is sold and the proceeds distributed equally among the owners; or if a partition action is filed, which allows an heir inheriting the property to sell his or her stake.
What is joint tenancy in common?
There is no right of survivorship in a tenancy in common. A tenant in common may deal with their interest or share in the property as they wish without permission of the other owner. Interests in property held under a joint tenancy must be held in equal shares.
What is the meaning of tenants in common?
Tenants In Common (TIC) are co-owners of an undivided interest in real property. Tenants in common each own a separate and undivided interest in the same real property and each has an equal right to the possession and use of the property.
But tenants in common have no rights of survivorship. Unless the deceased individual’s will specifies that his or her interest in the property is to be divided among the surviving owners, a deceased tenant in common’s interest belongs to his or her estate.
Right of Survivorship
One of the main differences between the two types of shared ownership is what happens to the property when one of the owners dies. When a property is owned by joint tenants with survivorship, the interest of a deceased owner automatically gets transferred to the remaining surviving owners. For example, if four joint tenants own a house and one of them dies, each of the three remaining joint tenants ends up with a one-third share of the property. This is called the right of survivorship.
Why It’s Important To Talk To Your Family About Your Wishes?
When it comes to the issues of estate planning it’s always good to educate yourself and be informed on what is best for your family. But one of the best tools you can do to make sure things go smoothly when you die is to talk to your family now.
Engage in conversations with your loved ones to express your wishes, concerns and plans. Hearing from you audibly speaks volumes over a document they read after you die. It aids in eliminating confusion, resentment and misunderstanding. When we leave our family behind they are in a grieving state of mind in which emotions are running high and this does not always add up to making important decisions. The more they remember what you spoke when you were alive will always keep family drama down.
