Wills v. Trusts: What’s Right for You?

It’s a good idea to take the time and make the effort to create an estate plan to take care of your estate — no matter if it’s a condo apartment and a housecat or a big house and lots of money in the bank — just in case something unexpected occurs tomorrow. That’s the advice from AZ Big Media in the article “The pros and cons of wills vs. trusts.”

Estate planning is the area of the law that focuses on the disposition of assets and expenses, when a person dies. The goal is to take care of the “business side” of life while you are living, so your family and loved ones don’t have to pick up the pieces after you are gone. It’s much more expensive, time-consuming and stressful for the survivors to do this after death, than it is if you plan in advance.

You have likely heard the words “trust” and “will” as part of estate planning. What are the differences between the two, and how do you know which one you need?

A will is the most commonly used legal document for leaving instructions about your property after you die. It is also used to name an executor — the person who will be in charge of your assets, their distribution, paying taxes and any estate expenses after you die. The will is very important, if you have minor children. This is how you will name guardians to raise your children, if something unexpected occurs to you and your partner, spouse or co-parent. The will is also the document you use to name the person who you would like to care for your pets, if you have any.

Burial instructions are not included in wills, since the will is not usually read for weeks or sometimes months after a person passes. It’s also not the right way to distribute funds that have been taken care of through the use of beneficiary designations or joint ownership on accounts or assets.

Another document used in estate planning is a trust. There are many different types of trusts, from revocable trusts, which you control as long as you are alive, and irrevocable trusts, which are controlled by trustees. There are too many to name in one article, but if there is something that needs to be accomplished in an estate plan, there’s a good chance there is a special trust designed to do it. An estate planning attorney will be able to tell you if you need a trust, and what purpose it will serve.

Trusts can be used by anyone with assets or property.

A will can be a very simple document. It requires proper formats and formalities to ensure that it is valid. If you try to do this on your own, your heirs will be the ones to find out if you have done it properly.  If it is not done correctly, the court will deem it invalid and your estate will be “intestate,” that is, without a will.

Many people believe that they should put all their assets into a trust to avoid probate. In some cases, this may be useful. However, there are many states where probate is not an onerous process, and this is not the reason for setting up trusts.

A trust won’t eliminate taxes completely, nor will it eliminate the need for any estate administration. However, it may make passing certain assets to another person or another generation easier. Your estate planning attorney will be able to guide you through this process.

Whether you use a will or a trust, or as is most common, a combination of the two, you need an estate plan that includes other documents, including power of attorney and health care power of attorney. These two particular documents are used while you are living, so that someone you name can make financial decisions (power of attorney) and medical health decisions (health care power of attorney) if you should become incapacitated, through illness or injury.

Speak with an estate planning attorney. Every person’s situation is a little different, and an estate planning attorney will create an estate plan that works for you and protects your family.

Reference: AZ Big Media (March 21, 2019) “The pros and cons of wills vs. trusts”

How Do We Live Our Lives When A Loved One Has Alzheimer’s?

The scenario is worrisome, as no one can be sure that this is something B. Smith would have wanted, if she had been asked before the disease had progressed. However, one good thing has come out of it, according to the article “B. Smith’s Alzheimer’s raises question: How to protect your wishes when incapacitated” from USA Today. There are more discussions about expressing people’s wishes, before they become incapacitated from Alzheimer’s.

More families are experiencing this very same dilemma because of the increasing number of Americans suffering from Alzheimer’s and other forms of dementia. More than 5.7 million in this country are suffering from this disease, which currently has no cure and is most likely to impact seniors, women and African Americans, according to the Alzheimer’s Association.

Without advance planning, it’s impossible to know what someone would want to happen. Discussing this is critical, while a patient is still relatively healthy and able to communicate her wishes to family members and to an estate planning attorney.

People who work in this area say there are two areas that must be addressed. One is drafting legal documents with an experienced estate attorney to determine who should be entrusted with health care and financial decisions. There is also a need for document known as a “statement of values” that will help family members understand goals and wishes and not be left guessing.

These decisions are not easy to consider when a person is still well. However, thinking about them and putting them down on paper, and then having the necessary documents prepared to formalize them and make them enforceable are important.

Here are the documents needed:

Durable power of attorney: This lets a trusted family or friend make financial decisions, in the event of incapacity.

Power of attorney for health care: This document permits a family member or friend to make decisions about health care decisions.

A will. The will is for the disposition of assets after your death. It also names the person who will be in charge, the executor.

A revocable trust. This is one of many documents that can be used to allow you to set conditions and directions about assets, while you are still living but when you have become incapacitated. It can be changed at your direction. Hence, the term revocable. An estate planning attorney will know what type of trust should be used for your situation.

Only four out of 10 Americans have wills, with many hesitating to have them created because they think that only rich people need a will. However, without a will, or the other documents described above, the family is left in a terrible situation, where there will be additional costs, if and when decisions need to be made but no one has been legally empowered to make the decisions.

The revocable trust could bypass many unpleasant situations, like instructing a power of attorney to place your assets in a trust that was set up specifically to pay for your care in a skilled nursing facility of your choice, or to describe with great specificity who was allowed to live in your home, if you became incapacitated.

Another missing step: the family discussion. Getting everyone together to discuss planning for the future, isn’t as fun as going on a family vacation, but it is important. If someone is starting to have the effects of dementia, they may not remember what they told another family member. With everyone in the same room, there will be a better chance that their wishes will be clear.

The moment someone learns that they have dementia, is the time to put all these elements into place, before it is too late.

Reference: USA Today (Jan. 31, 2019) “B. Smith’s Alzheimer’s raises question: How to protect your wishes when incapacitated”