Planning your estate with a good attorney is an important step towards protecting your assets, your wishes, and the people that matter the most to you. However, as any estate planning attorney can tell you, there is no cookie-cutter estate plan; everybody’s needs are different, and thus require different solutions. There are a variety of options for your estate, but typically the choice is between wills and trusts. So, which one do you need, or is it possible that you need both?
Nearly everybody needs to do some form of estate planning—even those with relatively small estates. You may think that since you don’t have a massive estate that the distribution process will be simple and straightforward. Unfortunately, that is not often the case. Should you die without having done any sort of estate planning, your estate will pass through a statutory process known as intestate succession.
Generally speaking, through intestate succession, your assets will go to your nearest living relative, which could be a spouse, parent, or child. This is, of course, after the probate process has taken place and court and attorney’s fees have been deducted. If no living relatives can be found, it’s possible that all of your assets will become property of the state.
As you can see, the state already has an “estate plan” for you—you just need to determine if it’s the plan you really want. Do you trust the courts to name someone to care for you and manage your affairs in the event of incapacity? Are you comfortable allowing them to determine what will happen to your children or belongings? If the answer is “NO,” it’s time to get to work and begin drafting your will, trust, and/or other key estate planning documents. If you’re trying to determine whether a will or trust is right for you, here are some general guidelines to keep in mind:
Understanding Wills and Trusts
A common question people have is whether they need a will or a trust for their estate plan. It’s important to note that trusts come in various forms, but for the purpose of this discussion, we will be focusing on revocable living trusts, which are created during a person’s lifetime and can be amended or revoked by the grantor.
It’s also crucial to understand that choosing between a will and a trust is not necessarily an either-or decision. In many cases, people should have both. If you opt for a revocable living trust, you should also have a “pour-over will” to ensure any assets not accounted for in the trust are included upon your death.
On the other hand, you can have a will without a revocable living trust. You can also incorporate a trust into your will, known as a testamentary trust, which becomes active upon your death.
Considerations For Wills
In your will, you can designate an individual, known as an executor, to manage your estate when you die. This allows you to put the administration of your estate in the hands of someone you trust, instead of leaving that task to the court. Wills also give you the opportunity to leave your property with your friends, partner, or organizations you support, as opposed to your assets being passed through the state’s statutory intestate succession process. Perhaps most importantly, if you have dependent children, a will can provide you the opportunity to name their guardians in the event of your death, rather than leaving that choice to the courts.
You should keep in mind that a will doesn’t keep your estate out of probate, so those costs and the time involved will still apply. There are also privacy considerations, because when your estate goes through probate, all relevant matters become part of the public record.
Considerations for a Trust
Like a will, a trust can usually be revoked or modified while you are still living. Unlike a will, however, a trust allows your beneficiaries to skip the costly and lengthy probate process. There are also fewer privacy concerns with trusts, since they are held in private and thus are not part of the public record.
A key benefit of trusts is that they give a high degree of control and oversight. Do you have wishes regarding how your heirs use the funds you leave them? Do you want payouts to only happen if heirs reach a certain milestone (i.e., graduation, maintaining sobriety, hitting a certain age)? With a trust, you can determine how and when distributions are made.
If you own property in another state, you should consider a trust. If, for example, you live in New Jersey but own property in New York, a trust allows you to avoid probate in two states.
Consider the Costs of Probate
One of the main factors to consider when deciding between a will and a trust is the complexity and cost of the probate process in your state. In New Jersey, for example, the probate process is relatively easy, inexpensive (around $200), and usually takes about a month for the court to review the will and appoint an agent to administer the estate. In this case, a will might be sufficient for many people.
However, in states like New York, where the probate process is more complicated and costly (around $1,250), a trust might be a better option. The trust allows you to avoid the time-consuming and expensive probate process, making life easier for your loved ones after you pass away.
Keep in mind that setting up a trust requires more work upfront, as you need to ensure your assets are either transferred into the trust during your lifetime or upon your death. On the other hand, with a will, you simply create the documents and ensure your estate is properly organized.
In conclusion, whether you should opt for a will, a trust, or both, largely depends on the complexity of the probate process in your state, as well as your individual circumstances. It’s always best to consult with an experienced estate planning attorney to discuss your specific situation and receive personalized advice.
If you are in New Jersey or New York and need assistance with your estate planning, feel free to reach out to the Chamberlain Law Firm for a consultation through our website or by calling us at (201) 273-9763.