Heuser Law Office Estate,Wills Do I Need a Will or Trust?

Do I Need a Will or Trust?

Property: If you own property and you care how it is handled after your death, then you need a Will or Trust.

Children: If you have minor children and you want to control who will care for them after your death then you need a Will.

Without a Will, family members may argue or may not step up to care for your children. State law will determine what happens to your property. Also, unless someone intervenes, the public administrator or your creditors will be appointed to settle your estate. In short, most people need a Last Will and Testament.

There are several ways that your property gets from you to your beneficiaries: transfer by will, transfer by trust, and transfer by contract, survivorship or other operation of law:

Transfer by Will ordinarily means that an Executor is appointed to gather your property, read your Will and distribute your property.

The most common transfer by trust involves a “Living Trust”, that is, a trust created while you are alive. You name and appoint the Trustee or successor tustee while you are alive. After your death, transfer by Trust means that your Trustee will distribute to your beneficiaries the property you put in the Trust while you were alive and any property that comes to the Trust by pour-over Will. One common mistake with Trusts is forgetting to fund them, that is, forgetting to transfer the appropriate assets to the Trust while the owner is alive.

Transfer by operation of law can mean several things. One common transfer results from the terms of legal title to property, for example, joint ownership “with right of survivorship”. If property is owned “jointly /wros” it becomes the property of the survivor upon the death of an owner. Another transfer by operation of law occurs by terms or a contract. Two examples are a “pay on death” clause on a bank account and a life insurance policy.

The interplay of these three transfer types is an important part of estate planning and misapplying these tools is a very common estate planning mistake. It is not out of nosiness that your attorney asks to know all your assets and to see copies of investment account or bank account statements, deeds and other financial records. Sometimes we forget exactly how we set up an account when it was done years ago.

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