Basics of Estate Planning (Wills vs. Trusts)

Submitted by Landon Reeves on Tue, 11/13/2018 - 16:29
Reeves Law Firm

 

Estate planning, including wills, trusts, probate, and Medicaid planning, is a significant part of my practice, and I absolutely love it because I get to help families protect their hard-earned assets and property. I am a firm believer that everyone absolutely needs some form of estate planning in order to protect their current assets and to protect any assets that they might acquire in the future. It can be as simple as a last will and testament which will allow you to dictate what is to happen to your money, assets, property, and your estate in general in the event that something bad happens to you. Don’t leave it up to the courts to determine what should happen to your property, you deserve to have the final say so because, after all, you are the one who worked so hard to acquire and achieve that property. We can help you set up an estate plan and make the process of distributing your property and carrying out your final wishes much faster, cheaper, and less stressful and burdensome on your loved ones in the event something bad happens to you. This blog will discuss two primary types of estate planning tools, wills and trusts.

Wills vs. Trusts

A will is simply a formal, legal document that outlines a person’s last wishes and how their property is to be distributed upon their death. A will becomes effective upon the will creator’s death, also known as the “Testator.” A will should typically name who is to be the “Executor” of the Testator’s estate. The Executor is the person named in the will and appointed by the probate court after the Testator’s death to wind up the affairs of the Testator, also sometime referred to as a “Personal Representative”. Some things to know about wills:

  1. They can be difficult to change,
  2. They are required to go through the process of probate,
  3. They are inexpensive to obtain,
  4. They can become a matter of public record,
  5. They only become effective when the Testator dies, meaning that they do not provide any protection to a person who is simply incapacitated, and
  6. It can take a substantial amount of time and money to probate and administer a will.

We can set you up with a will for right around $200 because we think it is imperative that everyone should at least have a will in place to provide your family and the court with some direction as to how your property should be distributed in the event that something bad happens to you.

If you own a home or have more than a couple thousand dollars in your account, then you may want to look at setting up a living revocable trust for your assets, property, and your estate. A trust is a wonderful tool that provides several benefits that a will does not provide including keeping all of your financial records and details private, it serves to avoid the process of probate all together, and it is much faster and cheaper to administer than going through probate. As you may already know or have already experienced with a loved one, probate can get very expensive and it can last a long time, sometimes upwards of a year or more.

Also, unlike a will, a trust can cover you while you are still alive by outlining what is to happen to your finances and who is to pay your bills if you become incapacitated. Who do you want to handle your affairs in the event that something bad happens to you and you are unable to take care of your affairs yourself? A trust can dictate who and how your affairs will be administered and taken care of if you are incapacitated.

What is a Trust and How Does It Work?

Think of a trust as a separate entity that simply holds assets for you, like a filing cabinet where you simply put things into it until you need them later. The primary type of trust that is used for estate planning and business succession purposes is the “Living Revocable Trust.” It is called “living” because it is created during the lifetime of the person establishing the trust, also known as the “Grantor”, and you will put certain assets into that trust during the course of your life called “Trust Assets”. It is called “Revocable” because the person creating the trust can designate himself, herself, their spouse, or each as “Trustee” or “Co-Trustee” and they have the power to change and amend the trust rules and terms at any time. I think it’s important now to get a grasp of the various trust related terms used in estate planning. 

  • “Beneficiary” – This is the person(s), entity, charity, trust, or any other entity or being who will receive assets from the trust as outlined by the Grantor in the trust.
  •  “Grantor” or “Settlor” – this is the person who is establishing the trust for themselves and their family. For example, I would be the settlor of the Landon Reeves Revocable Living Trust because I created it for myself and my family.
  • “Incapacitated” – if you are ill or injured or otherwise unable to take care of yourself and your finances.
  • “PourOver Will” – This is a will that add any unfunded or unallocated assets to the trust. Think of it as a safety net which will pick up any assets that you do not specifically put into the trust.
  • “Successor Trustee” – this is the person who will serve as the trustee of the trust when the initial trustee can no longer serve as the trustee.
  • “Trust Assets” – assets and property that are transferred into the trust which can include, among other things, your house, any property you own, valuable possessions, bank accounts, retirement accounts, investments, and most other types of assets.
  • “Trustee” or “CoTrustee” – this is the person who is designated by the Grantor to manage the trust. The trustee has a fiduciary duty to manage the trust in a prudent manner and in the best interests of the beneficiaries of the trust. A Co-trustee is simply a name given to the trustees of a trust when there are multiple trustees designated by the Grantor.

The actual mechanics of a trust and how it works can be relatively simple, as it is in most cases, or it can be extremely complex in certain circumstances. This blog will keep it simple which will be applicable to the vast majority of readers. The drafting of the trust document itself will require some information and input from the Grantor of the trust.

Generally, the answers to the following questions will dictate how the trust will operate:

  1. who is to be the trustee,
  2. who is to be the successor trustee,
  3. who are the beneficiaries,
  4. what happens to the Grantor’s affairs if they are incapacitated,
  5. what property will go into the trust,
  6. how will that property be distributed upon the Grantor’s death,
  7. and which beneficiaries will receive which property and under what conditions will they receive it.

Once the trust is established and it is determined how the trust will operate, the Grantor will then “fund” the trust which means that certain assets will be put into the trust itself. For example, if I am the Grantor of the Landon Reeves Living Revocable Trust, after creating the trust, I will then deed my house and any property that I own into the trust, I will title any vehicles I have into the trust, I will title any other assets into the trust such as a motorcycle or a boat (I wish), and I will name the trust as the beneficiary of any accounts, retirement accounts, investments, pensions, 401(k), or any other asset that I want to put into the trust that does not have to be deeded or titled. Once that property is put into the trust, the trust is then funded and fully functional. At that point and until the Grantor’s incapacitation or death, the Grantor will have complete control of the trust, they will be entitled to any money or income in the trust, they will be able to put any assets into the trust or take any assets out of the trust at any time, and they will be able to sell any trust property at any time. This provides a lot of flexibility while also providing protection at the same time so there is virtually no risk to setting up a trust. Upon the death or incapacitation of the Grantor, the trust terms will then kick in and the trust will be administered per the wishes of the Grantor as spelled out in the trust. At this point, the successor trustee will then be responsible for administering the trust and carrying out the wishes of the Grantor and the distribution of the trust property to the beneficiaries as outlined in the trust document.

A living revocable trust really is a pretty remarkable instrument. Quite frankly, I don’t know why anyone wouldn’t want to set up a trust for themselves and their spouse as soon as possible because there really is no downside. It will save your family money on the back end by avoiding probate, it is administered much quicker than a will, it provides more flexibility and protection than a will, it will keep your information private and not a matter of public record, and maybe most importantly, it just makes things so much easier on your family and your loved ones when something bad happens to you. Let me know how we can help you take care of your estate and set up a plan that gives you the final say in your property, provides you flexibility, and also makes things easier and cheaper on your loved ones.