Do You Need a Last Will & a Living Trust?

By Kristin Shea

The short answer to whether you “need” a last will or a living trust is no, you are not legally required to have either. However, it is in your best interests to have a last will, and it may also be beneficial to have a living trust in some circumstances.

The short answer to whether you “need” a last will or a living trust is no, you are not legally required to have either. However, it is in your best interests to have a last will, and it may also be beneficial to have a living trust in some circumstances.

Reasons for Making a Will

A will is a legal document through which you can express how you wish to distribute your property upon your death. This is especially important if you intend to leave property to somebody besides a spouse or blood relative, such as a domestic partner, friend or charity. You can also name a guardian for your children or pets. A valid will is one of the best means of ensuring that your intentions are honored upon your death.

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Distribution of Property Without a Will

If you die intestate — without a will — the court will determine how your property is distributed. Although every state has its own laws concerning succession of inheritance, generally, the court passes property first to your spouse and children. If you have no spouse or children, the property might go to parents or siblings, or the next closest biological relative. If you have no living biological relatives, your property will most likely go to the state.

Appointment of Guardianship Without a Will

If you have minor children, the will provides you an opportunity to make decisions about their future care. You can name a guardian for your children in your will. This is especially crucial if you are a single parent or if both parents die in a common incident. If you do not name a guardian, the court will appoint a guardian for your children and might make a decision with which you would not agree. You can also make arrangements for your pets’ care in your will, including naming a guardian who will take responsibility for your pets’ care.

Living Trust

Although not required, sometimes a living trust is an appropriate method of organizing your assets. A living trust allows your beneficiaries to avoid probate, a sometimes long and expensive process. On the other hand, establishing a living trust initially costs you money. You must carefully follow procedure for setting up a valid living trust. If you have failed to properly set up a living trust and the court rules that your living trust is invalid, and you do not have a last will, the court might rule that you died intestate, in which case the court will make decisions regarding your property distribution.

Joint Tenancy

In cases in which all of your property is owned in joint tenancy, you might not require a last will or a living trust. Joint tenancy provides full ownership of the property to all joint tenants. If you establish joint tenancy solely for the purpose of avoiding probate, consider how the arrangement affects you during your lifetime. Consider such issues as the rights of creditors of all joint tenants to make claims to the property, the possible obligations of divorces and child support payments of the other joint tenants, and the ultimate right of ownership of each joint tenant. Consult a lawyer to make sure you've covered all points required for a living trust.

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Last Will vs. Living Trust


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Last Wills & Trusts

Although few individuals enjoy contemplating death, planning for this unavoidable occurrence allows you to provide clear instructions regarding the distribution of your assets after your death. Estate planning is the area of law that encompasses the practice of creating wills and trusts. Since laws vary between states, it may be best to consult an attorney whose interest and practice focuses on estate planning, particularly if you have a complicated estate.

When Does One Need a Last Will & Testament?

People of modest means often believe that wills are just for the wealthy. However, this is a misconception, and a more accurate gauge of whether or not you need a last will and testament is how much you care about what happens to your property and your family when you die.

Death Without Wills & the Rights of Survivorship for a Property

While a will is one tool used in estate planning, there are other options available to ensure that your property goes to the appropriate beneficiary after your death. One of those alternatives is making your property subject to a right of survivorship. The benefit of the right of survivorship versus using a will is that the beneficiary obtains the property faster. Property and probate law operate under state law, so consider consulting with an attorney licensed to practice in your state if you want to create a right of survivorship or if you wish to determine if a right of survivorship exists on a piece of property.

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