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Frisse & Brewster Law Offices
It's not about how much. It's about what's important.
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~ What happens if I die without a will?
In a sense, no person can die without a will. Even if you have not created one for yourself, the laws of your state specify how your property is distributed on your death. The state essentially writes a will for you. A person who dies without a written will is said to have died intestate. This law distributes your property to your family members based on their relationship to you. With a will, even though it will go through probate, you control to whom, when, and in what portions your estate is distributed.
~ Is a preprinted, fill-in-the-blank form a valid will?
Every jurisdiction varies. Some states do permit preprinted fill-in-the-blank forms when all the “material” portions of the will are in the decedent’s handwriting. And not only does the form have to comply with state law, but there are limitations on what types of property can pass under the will and the formalities of signing the will. But, even if accepted in your state, think carefully before using these do-it-yourself wills. Your family is unique, and they have unique issues, which can’t be addressed through a generic form. No matter what the value of your estate, it’s taken you a lifetime to create and build it – you and your family deserve the care an attorney will give you in crafting a plan that is best for you.
~ I hear the word “probate” a lot. Exactly what is probate?
The court proceeding that establishes the validity of a will; appoints personal representatives and guardians of minor children; and provides legal oversight to ensure accuracy in accounting for a decedent’s assets, fairness in the treatment of heirs, and protection for the rights of the decedent’s creditors.
~ What is a revocable living trust?
First, trust ownership is a form of ownership where the legal title to assets is held by the trustee of the trust for the beneficial enjoyment or use by the beneficiary or beneficiaries of the trust. As the name suggests, a revocable living trust is a trust created during the trustmaker’s life, and the trustmaker retains the right to amend or revoke the trust while alive. While the trustmaker is alive and competent, he or she can serve as the trustee and is the primary beneficiary of the trust.
Like a will, a living trust contains the maker’s instructions for what is to happen to the trust property when he or she dies. But, unlike a will, a living trust also contains instructions for what is to happen if the maker becomes disabled or incapacitated and can avoid both living and death probate.
~ What are the benefits of a revocable living trust?
* Avoid probate. As long as all of the trustmaker’s assets are funded to the trust, a revocable living trust avoids a death probate, which, among other benefits, results in privacy and lower administration costs.
* Plan for disability. If the trustmaker becomes disabled, the successor trustee takes care of the trustmaker’s affairs according to the instructions in the trust. There is no need for guardianship proceedings.
* Control property during life. Because the trustmaker is both the trustee and the beneficiary of the trust, the trustmaker retains the same control over the property as he or she had before transferring the property to the trust. The trustmaker is free to do as he or she wishes with the property, and there are no worries about a co-owner’s creditors or whether the property will end up in the hands of the wrong heirs.
* Control property at death. The trust controls the property at the death of the trustmaker, and the trust contains the trustmaker’s instructions for what is to happen to that property – whom it goes to, how much and when. It can also provide creditor protection for beneficiaries.
~ Are there considerations as to why a small estate should have a living trust?
A properly drafted and fully funded living trust will save your family substantial costs at your death. While probate costs generally are related somewhat to the size of the estate, the process involves certain minimum costs and fees which will accrue regardless of the size of the estate (such as opening and closing the probate, advertising, etc.). Those costs and fees tend to be a larger percentage of a small estate than they are for a large estate. On this basis alone, a living trust can potentially be more valuable to the small estate than to a large estate.
~ I purchased a software program that will prepare a trust for me. Why shouldn't I do my own?
Software programs typically provide only very general or generic tax advice; they are not likely to address relevant personal and local law issues. This is inadequate for people with taxable estates. Innocent mistakes or oversights in tax planning can disqualify major exemptions, deductions, and credits. The real issue here is not whether the trust is right for you, but whether you are receiving the counseling that you need to make the right decisions.
Forms, whether they are preprinted or programmed software, are no substitute for experience, judgment, and legal training. In the end, a computer program is only smart as the operator; if you're not already an expert in estate planning, a software program isn't going to make you a competent estate planner.
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