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Wills vs. Trusts: A Quick & Simple Reference Guide

Wills vs. Trusts: A Quick & Simple Reference Guide

Confused about the differences between Wills and Trusts?  If so, you’re not alone. While it’s always wise to contact professionals focused on this area, like Cheever Law, APC, it’s also important to understand the basics. Here’s a quick and simple reference guide:

What Revocable Living Trusts Can Do – That Wills Can’t

  • Avoid a conservatorship and guardianship. A Revocable Living Trust allows you to authorize your spouse, partner, child, or other trusted person to manage your assets should you become incapacitated and unable to manage your own affairs. Wills only become effective when you die, so they are useless in avoiding conservatorship and guardianship proceedings during your life.
  • Bypass probate. Property in a Revocable Living Trust does not pass through probate. Property that passes using a Will guarantees probate. The probate process, designed to wrap up a person’s affairs after satisfying outstanding debts, is public and can be costly and time consuming – sometimes taking years to resolve.
  • Maintain privacy after death. Wills are public documents; Trusts are not. Anyone, including nosey neighbors, predators, and unscrupulous “charities” can discover the details of your estate if you have a Will. Trusts allow you to maintain your family’s privacy after death. 
  • Protect you from court challenges. Although court challenges to wills and trusts occur, attacking a Trust is generally much harder than attacking a Will because Trust provisions are not made public.

What Wills Can Do – That Revocable Living Trusts Can’t                    

  • Name guardians for children. Only a Will – not a Living Trust or any other type of document – can be used to name guardians to care for minor children.
  • Specify an executor or personal representative. Wills allow you to name an executor or personal representative – someone who will take responsibility to wrap up your estate after you die. This typically involves working with the probate court, protecting assets, paying your debts, and distributing what remains to beneficiaries. But, if there are no assets in your probate estate (because you have a fully funded Revocable Living Trust), this feature is not necessarily useful.

What Both Wills & Trusts Can Do:

  • Allow revisions to your document. Both Wills and Trusts can be revised whenever your intentions or circumstances change so long as you have the legal capacity to execute them. 

WARNING: There is such as a thing as irrevocable trusts, which can only be changed under certain circumstances, using very specific methods.           

  • Name beneficiaries. Both Wills and Trusts are vehicles which allow you to name beneficiaries for your assets. 
  • Wills simply describe assets and proclaim who gets what. Only assets in your individual name will be controlled by a Will.
  • While Trusts act similarly, you must go one step further and “transfer” the property into the Trust – commonly referred to as “funding.” Only assets in the name of your Trust will be controlled by your Trust.
  • Provide asset protection. Trusts, and less commonly, Wills, can be crafted to include protective sub-trusts which allow your beneficiaries access but keep the assets from being seized by their creditors such as divorcing spouses, car accident litigants, bankruptcy trustees, and business failure.

While some of the differences between Wills and Trusts are subtle; others are not. Together, we’ll take a look at your goals as well as your financial and family situation and design an estate plan tailored to your needs. Call me at (858) 432-3923 today and let’s get started.

The Silent Threat to Your Estate Plan

The Silent Threat to Your Estate Plan

It is common knowledge that everyone needs to have an estate plan in place. Commonly, the focus is on assets, taxes, and any changes to legislation that may affect the security of your loved ones in the event of your incapacity or death. What many often forget, however, is that changes in family dynamics and circumstances can threaten even the most well thought out estate plan. This silent threat can easily keep your estate plan from actually working when it is truly needed. Below are several situations where updating an existing estate plan or creating a plan for the first time is necessary to protect your loved ones.

Children reach the age of majority: When beneficiaries under your estate plan grow into adulthood, the manner in which you plan to transfer your assets will likely change. Special needs individuals, for example, may now be eligible for government assistance and the provisions of your existing plan may disqualify them from receiving those benefits in the future. Also, paying for higher education can be a focus as the children become adults. This may prompt changes in distribution amounts or requirements before the beneficiary can receive the money.

You are getting married for the first time: Marriage changes the structure of your family and could cause you to re-prioritize who you would like to leave your assets to. It also may require you to add your new spouse as a beneficiary on retirement accounts or life insurance policies, as well as to update your personal inventory of assets resulting from the purchase, sale, or consolidation that typically occurs with a marriage. If you are changing your legal name, make sure to update all of the relevant documents—including insurance policies, bank accounts, credit card companies, and property deeds.

You are getting remarried: In addition to the things to consider when you are getting married for the first time, a second marriage has the added concern about how to provide financial security for your new spouse while providing an inheritance for your children from a first marriage. This scenario can also affect the timing of how you want the inheritance to be distributed and the amount that is allocated to each loved one. There are several tools that may be used—such as annuities, irrevocable life insurance trusts, or splitting your estate among the beneficiaries—to address your family’s unique needs.

The birth or adoption of a child or children: Whether you are giving birth to or adopting a child, overseeing a minor’s life can be overwhelming. Make sure you have plans prepared in the event you are not around. This includes having a will or trust prepared to outline financial distributions and management of funds for the child(ren), deciding on a guardian and any other necessary fiduciaries, and ensuring that accounts and/or life insurance policies left for the children are properly accounted for.

Bottom Line

Be comforted in knowing that there are no right or wrong answers when it comes to the estate plan for your family’s needs. What is key is to make sure you work with an experienced and knowledgeable estate planning professional to ensure that these silent threats are addressed so your true wishes are carried out when they are needed most. Give me a call at (858) 432-3923 so we can discuss your concerns and craft the best plan to meet your unique family situation.

4 Ways Estate Planning Can Improve Relationships with Loved Ones

4 Ways Estate Planning Can Improve Relationships with Loved Ones

With the holiday season just ending, you probably spent lots of time with your family and friends. During those moments, you were likely reminded of just how important these relationships can be. And as we grow older, you begin to realize how precious little time we have to spend with one another.

Given life’s fleeting nature, using time with your family and friends to talk about estate planning is vital for ensuring you and your loved ones will be provided and cared for no matter what happens. Though death and incapacity can be uncomfortable subjects to discuss, with a comprehensive plan in place, you’ll almost certainly experience a huge sense of relief and peace, knowing this critical task has been discussed and documented.

And though you might not realize it, estate planning also has the potential to enhance your relationship with loved ones in some major ways. Planning requires you to closely consider your relationships with family and friends—past, present, and future—like never before. Indeed, the process can be the ultimate forum for heartfelt communication and prioritizing what matters most in life.

Indeed, communicating clearly about what you want to happen in the event of your incapacity or death (and asking your loved ones what they want to happen) can foster a deeper bond and sense of intimacy than just about anything else you can do.

Here are just a few of the valuable ways estate planning can improve the relationships you cherish most:

1) It shows you sincerely care
Taking the time and effort to carefully plan for what will happen to you in the event of your incapacity or when you die is a genuine demonstration of your love. It would be far easier to do nothing and simply let you family and friends figure it out for themselves. After all, you won’t be around to deal with any of the fallout.

Planning in advance, though, shows that you truly care about the welfare of your loved ones, even when you’re no longer around to benefit from their love and companionship. Such selfless concern and forethought equates to nothing less than a final expression of your unconditional love.

2) It inspires honest communication about difficult issues
Sitting down and having an honest discussion about life’s most taboo subjects—incapacity and death—is almost certain to bring you and your loved ones closer. By forcing you to face immortality together, planning has a way of highlighting what’s really important in life—and what’s not.

In fact, my clients consistently share that after going through our estate planning process they feel more connected to the people they love the most. And they also feel more clear about the lives they want to live during the short time we have here on earth. 

Planning offers the opportunity to talk openly about matters you may not have even considered. When it comes to choices about distributing assets and naming executors and trustees, you’ll have a chance to engage in honest discussions about why you made the choices you did.

While this can be uncomfortable, clearly communicating your feelings and intentions is crucial for maintaining healthy relationships. In the end, it might just be the first step in actively addressing and healing any problems that may be lurking under the surface of your relationships.

3) It builds a deep sense of trust and respect
Whether it’s the individuals you name as your children’s legal guardians or those you nominate to handle your own end-of-life care, estate planning shows your loved ones just how much you trust and admire them. What greater honor can you bestow upon another than putting your own life and those of your children in their hands?

Though it’s often challenging to verbally express how much you love your family and friends, estate planning demonstrates your affection in a truly tangible way. And once these people see exactly how much you value them, it can foster a deepening of your relationship with one another.

4) It creates a lasting legacy
While estate planning is primarily viewed as a way to pass on your financial wealth and property, it can offer your loved ones much more than just financial security. When done right, it lets you hand down the most precious assets of all—your life stories, lessons, and values.

In fact, the wisdom and experience you’ve gained during your lifetime are among the most treasured gifts you can give. Left to chance, these gifts are likely to be lost forever. In light of this, I’ve built in a process, known as Family Wealth Legacy Passages, for preserving and passing on these intangible assets.

With this service, which is included in every estate plan I create, I guide you to create a customized recording in which you share your most insightful memories and experiences with those you’re leaving behind. Family Wealth Legacy Passages can not only ensure you’re able to say everything that needs to be said, but that your legacy carries on long after you—and your money—are gone.

The heart of the matter
With me as your Estate Planning Attorney I can help guide and support you in having these intimate discussions with your loved ones. I offer a wide-array of customized planning options designed to enrich your family and friends with far more than just material wealth.

With my help, estate planning planning doesn’t have to be a dreary affair. When done right, it can put your life and relationships into a much clearer focus and ultimately be a tremendously uplifting experience for everyone involved. Contact me at (858) 432-3923 to learn more.