Last wills and trusts are two ways to distribute your property after you die. A will and a trust may be used together or separately. Even if you set up your own will or trust, you may wish to consult an attorney to ensure your will or trust meets your state's laws and that you have not overlooked anything.
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Wills vs. Trusts
While both wills and trusts may be used for estate planning, they differ in several ways. A will names people to receive the testator's estate when he dies. A will must go through probate, which is the court-supervised process of carrying out the will's instructions. A will does not take effect until the testator dies. In a will, property is passed from the estate to the people listed in the will. In a trust, on the other hand, property is put into the trust by a grantor, where it is managed for a trustee for the benefit of others, according to the American Bar Association. A trust does not go through probate, and your trust may take effect while you're alive or after you die. A trust you create during your lifetime is known as a living trust, while a trust that does not become created until you die is known as a testamentary trust.
Preparing a Will
All 50 states accept a will made in writing as long as it is properly signed and witnessed, according to the American Bar Association. At a minimum, your will should contain your name, a statement revoking all previous wills, at least one clause that gives something away, your signature and the signatures of any witnesses your state law requires. You may write your will by hand or type it, and you may use blank paper or a preprinted will form. You may wish to consult an attorney to ensure that you sign your will and have it witnessed correctly so that it is valid in your state.
Preparing a Testamentary Trust
A testamentary trust can be prepared by including a clause in your will that creates the trust. This clause may simply say that upon your death, your will creates a trust to benefit your named beneficiaries and that should be supervised by the person you name as trustee, according to the American Bar Association. Also include a statement in your will that says the entirety of your estate should be moved into the trust. Your estate can then be distributed to your beneficiaries from the testamentary trust.
Preparing a Living Trust
A living trust is simply a trust you create while you are living. Like a will, your living trust should be created in writing. Your trust document should state that you are the grantor, that you are creating the trust for the benefit of certain named beneficiaries, and that you appoint one or more people as trustee to manage the assets of the trust on behalf of the beneficiaries and to give them to the beneficiaries when you die, according to the American Bar Association. You may name yourself as trustee, or you may name someone else you trust. One benefit to naming another person as trustee or co-trustee is that he can then manage your property automatically if you become incapacitated. Your trust document should be signed by you, dated and have the signatures of at least two witnesses. Since the rules for valid trusts vary depending on where you live, you should check with an attorney who practices trust law in your state to ensure you have covered all your bases. In order for property from your trust to pass to your beneficiaries, your property must be owned by the trust. You can move most of your property, including real estate, into the trust by changing the owner's name to the trust's name in most cases.
Trusts have become a much talked-about way to avoid the probate process in recent years, according to the American Bar Association. However, even if you have a living trust, you may still need a will. For instance, if you have young children, you should have a will that appoints a guardian for them, according to the American Bar Association. In addition, a "pour-over" will that leaves your entire estate to your trust will ensure that any property you haven't put in the trust will be moved there when you die.
References & Resources
- ABA Guide to Wills and Estates: Revocable Living Trusts
- ABA Family Legal Guide: Can't a Living Trust Substitute for a Will?
- ABA Family Legal Guide: What is a Living Trust?
- FindLaw: Trusts
- Sacramento County Law Library: Wills, Trusts and Estate Planning
- The 'Lectric Law Library: Differences Between Wills and Living Trusts
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