LIVING TRUST OR WILL ?
By: Frank J. Prainito, Attorney at Law
A prudent person will make certain his/her affairs are in order before they lose the capacity to make their wishes known. We see examples of unexpected passing in the news everyday. The question is whether these perons clearly stated their wishes. Sometimes being who they wish to be the caregiver of the children or whom they wish to handle their estate? I am not certain if some of these persons who passed with Wills ever reaffirmed or republished the Wills but it is always a good idea to have your legal documents reviewed periodically so to ease any controversy.
The QUESTION is which is better a Will or a Living Trust? One thing for certain is a Will means probate. A Will must be filed with the courts to prove it is genuine and to obtain orders to transfer the assets. A Will means under the scrutiny of the courts. The courts will be involved every step of the way. It may be many months before the property is distributed to whom the decedent wished. This also means attorneys will be involved which causes the estate to shrink. Generally thousands of dollars in legal fees must be paid. In fact, some attorneys have a huge inventory of Wills secured in their office . . . just waiting for a person to pass so they can begin administration. The whole world will know about your legal afairs as this is a public proceeding. A Living Trust does not need to be probated. Of course, the successor trustee will need to provide notice to the heirs and provide each of them with a copy of the trust documents, but this is a private matter. The heirs need to be advised who was named as Succesor Trustee and the estate will be handled by this person in accourdance to the decedent's wishes. The Successor Trustee may wait the staturory period of time after providing notice to the heirs or may just begin to collect the assets for administration. There is not a need to publish the Trust in a newspaper or log the Trust with the court. This is generally the most cost effective manner to handle your estate. The key word here is of course "trustee" as in who do you trust to be responsible to distribute your estate? Where such a trusted person exists . . . you may be far better off with a Living Trust coupled with some other documents than just a Last Will and Testament. Sometimes an attorney is named as the Successor Trustee where no one else exists.
THEREFORE, Generally speaking a person is better off with a Trust than a Will and it is highly recomended a Trust be established when a Person owns real property. The ownership interest can pass to the selected beneficiary outside of probate in a very effective riskfree way. After the Trust is carefully drafted, the real property is put into the name of the trust and recorded with the county recorder. The owner is now the Trust! But the transferor is the trustor who generally is also the First Trustee and will retain control over the property. The Trustor/Trustee can be both husband and wife initially with the estate eventually controlled by the Successor Trustee who may be a child or children of the trustor. The word "living" refers to a Trust that may be changed during the life of the trustor(s) while they are in good health . . . So they may sell the property if they wish or change the ultimate beneficiary designations as many times as they wish while they are still in good health.
WARNING: Paralegals are not attorneys. They often will prepare wills or trusts for clients and give the wrong advise or missing information. It is not a good idea to buy a will or trust from a person who says he is an estate planner . . . such as an insurance agent or the like . . . as they will generally charge you as much as an attorney but often are not legally competent to properly prepare the documents or to make certain the documents are fully executed. This includes on line services such as the ones advertised on your friendly radio station or news paper. More times than not you are being cheated.
For real peace of mind you should visit with an Estate Planning Attorney who understands Probate Law and who can properly direct you to the documents you need.
FOR MORE INFORMATION VISIT PRAINITOLAW.COM
OR CALL FRANK J PRAINITO AT 909-884-2191.
