I Have a Will, Is that Enough?
A will is a great instrument, and essential to a properly executed estate plan. Unfortunately, in many cases it is not enough. If you went to an attorney in the early 80’s to have them draft you an estate plan, you most likely would have received a Last Will & Testament, a Power of Attorney, and possibly a Health Care Directive.
After charging you a significant amount of money for these documents, the attorney could bank on your family returning to use his services some time down the road when you and your spousedied to probate your estate. Essentially ensuring he or she could collect money not once, but twice from your estate.
Probate is the process of administering and dividing a person’s estate through the courts. Probate is time-consuming, often public, contentious, expensive, and completely unnecessary. Probate cases can last as long as two months to two years. My office recently conducted an informal survey of estate planning attorneys throughout the United States and found the average attorney charges around $275 an hour for a probate case, and at minimum charges 10 hours. Add in court filing costs, appraisals, and publication fees, and you are looking at $3,500 to $4,000, at minimum, to probate a case.
These monetary considerations do not even take into account the emotional collateral damage which occurs to families as they have to wade through the probate process. Family members who were close going into the proceedings become bitter rivals who refuse to speak to one another.
In an attempt to avoid probate estate planning attorneys have implemented several “non-probate” instruments, including “Living or Revocable Trusts.” These documents allow you to retain complete control of your estate, and in some cases protect your personal assets, during your life time and if properly funded assist your estate in avoiding probate.
Unlike a Last Will & Testament, a Trust is a living breathing document which can retain control after your death. As such, you can set forth provisions to care for your loved ones far past the time of your death.
The keys to maintaining a quality trust is to ensure the instrument is properly funded, name a responsible successor trustee, and to properly name beneficiaries:
Funding a trust simply means changing the beneficiaries of your 401K, IRA, Life Insurance Policies, Defined Benefit Plans, and Savings & Checking Accounts to be the Trust. It also includes transferring ownership of any “real property” (i.e. houses, vacation properties, undeveloped land) into the Trust. Failing to fund these assets into the trust does not always result in probate but may result in you inadvertently leaving money to beneficiaries outside of your estate.
Successor trustees are the individual(s) you desire to oversee your trust after you die. In many cases these individuals are trusted family members and friends. Beneficiaries are those loved ones, universities, religious affiliates, or institutions you desire to leave your assets to. If your successor trustee or beneficiary, however, dies before you, your estate could end up in probate. For that reason, we typically suggest you list an alternate or contingent beneficiary and/or successor trustee. That is also the reason Guardian Law conducts annual meetings with its clients to ensure the trust remains current.
To assist individuals from avoiding probate and other problems which may arise Guardian Law provides the following:
Health Care Directives
Special Needs Planning