A Living Will: Do I Need One?

In the aftermath of the Terry Schiavo case, many people wondered whether they should document their wishes with regards to end of life situations.  Many estate planners now highly recommend creating a living will.  Most young, healthy, people do not consider a living will necessary.  Thinking about suffering a tragic injury is not something most people think about or plan for.  However, with the amazing advances in modern science the body can now be kept alive after the mind is long gone.  The Terry Schiavo case is only one example where long, heart wrenching, legal battles and litigation could have been avoided if wishes  had been set forth beforehand in a document.  In the best case scenario you create a living will that never becomes necessary.  But if something tragic does occur, letting your loved ones know your wishes will save them heartache and money.

Reasons to Create a Living Will

Healthcare has advanced so far that the body can now long out live the mind.  Many people have developed strong feeling about how they would like their life to end if they should be caught in some catastrophic situation.  If a person become brain dead without a living will the decisions regarding their life are passed to their family.  In a perfect scenario the family knows and respects the victim’s wishes.  However, in many cases absent a living will, the family either does not know the victims wishes, is in conflict about them, or simply decides to disregard them.  These squabbles can lead to immense heartache and long, expensive, litigation.  All of this can be avoided by creating a living will.

Living wills put the power in your hands.  They offer a clear description of your wishes about how, if you become incapacitated, you would like your medical care to continue.  You are in complete control of your medical treatment, even though you are completely incapacitated.  A living will takes the burden of decision making away from your loved ones. If you do not have a living will, one of your loved ones will be forced to make decisions that often can mean life or death for you.  That is a horrible burden to place on  another.  If your family is forced to make the decision to end life-saving measures, the burden will be present for years.  A living will relieves your family of this burden.

A living will helps you avoid incurring expenses for your family.  While the decision to receive life-sustaining medical care should never be based on finances, it can cost thousands of dollars a day to sustain life artificially.  This is a hefty burden to place on even the wealthiest families.  If you do not wish to have artificial treatment, a living will can be used to keep these expenses from piling up, burdening your loved ones.

It is important to remember that creating a living will does not  destroy your right to make your own decisions now.  The living will only becomes effective when you are no longer able to make your own decisions.  It is also important to understand that even if you have discussed your beliefs and wishes about end of life medical care with your family and loved ones, that does not mean they will choose to honor them.  Absent a legal living will, your wishes, no matter how vocal, are not binding. There is no guarantee that what you envision for the end-of-life will be what your loved ones envision.  Creating a living will keeps the power over your life with you.

 

No one wants to think about suffering a catastrophic, devastating,  injury which may require other to make life or death decisions for you.  Sadly the truth is these things happen.  It is important to be prepared.  By creating a living will you are not only ensuring that your wishes are followed but you are saving your family the heartache and immense burden that comes with making those gut wrenching decisions.  Living will are not difficult to make.  Simply contact your attorney and they will be able to instruct you on  how to proceed.  I would highly recommend creating one.  If it is unnecessary it will sit unopened and unused.  If, however, it does become necessary it will allow you to make the decisions regarding your medical care.  Having a living will in place is a win/win situation.

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Basic Types of Trusts

Trusts come in many shapes and sizes.  There are literally a ton of different types of trusts all constructed to perform different tasks.  There are two overarching classifications of trusts: living v. testamentary and revocable v. irrevocable.  After these classifications trusts are classified by their purpose.  Depending on what you are trying to accomplish by setting up your trust, determines which classification it will fall under.  These different types of trusts can be confusing.  To help you sort out the nuances and decide which type best suits your needs I have compiled a short description of the four overarching types.

Living v. Testamentary Trusts

These are some of the most basic trust classifications.  A living trust describes a trust that comes into effect while the grantor is still alive.  Most living trusts are created by a written instrument, which can be either a trust agreement or a declaration of trust.   When the trust has a trustee other than the grantor, the trust instrument is called a “trust agreement” because both the grantor and the trustee must agree to the terms of the trust.  However, if the grantor is the sole trustee, then the trust instrument is simply called a “declaration of trust,” because the grantor is the only party to the trust.

If a trust is created by a last will and testament the trust is considered a testamentary trust.  Testamentary trusts can only become effective after the testator has passed away.  Even then, the last will and testament must be admitted to probate before the trust can become effective.

So what is the big deal whether a trust is living of testamentary?  Well other than the obvious difference that one becomes effective during the grantor’s life, there are several major differences between the two.  Testamentary trusts do not avoid probate.  This is because they become effective only after the grantor has passed away. Living trusts will avoid probate if they are properly funded during the grantor’s lifetime.  Testamentary trusts are created under a Last Will and Testament.  Because of this, there are more formalities to creating, and changing, a testamentary trust. Testamentary trusts are also public because they are part of a Last Will and Testament, which is a public document.  Costs can also be a factor.  Living trusts require a separate document meaning it may cost more, whereas a testamentary trust is part of a Last Will and Testament.

Revocable v. Irrevocable Trusts

Another very basic classification of trusts is whether they are revocable or irrevocable.  If the grantor reserves the right to revoke the trust after it becomes effective, including the right to change any of the terms or provisions of the trust, then the trust is said to be a “revocable trust.”  If the grantor gives up the right to revoke the trust after it becomes effective, including the right to change any of the terms or provisions of the trust, then the trust is said to be an “irrevocable trust.”  This classification only applies to living trusts.  Obviously the grantor cannot reserve the right to revoke a trust after he has died.

The difference between these two types of trusts is obvious.  One can be revoked or changed and one cannot.  But what is the significance of these classifications?  Well, if you put your property into a revocable trust, you can get your property back any time you want.  You can also change the conditions upon which some or all of the beneficiaries will receive benefits. Essentially, when you create a revocable living trust, you still retain all the “incidents of ownership” to your property.  That means that you retain the power to sell it, give it away, change the beneficiaries of that property, and determine how the property will be managed and invested.  Basically,  you do not give up any rights to your property when you transfer it to a revocable living trust.  For that reason you are still treated as the owner of the property for tax purposes.

An irrevocable living trust is a horse of a completely different color.  Once you transfer property into an irrevocable living trust, you give up all rights to that property. Your rights are lost because an irrevocable trust is, by its definition, one where you no longer have the right to amend, revoke, terminate or change its terms.  In other words, you give up all your rights to any property transferred into an irrevocable living trust.  It is the same thing as giving the property to another person with no strings attached.

Classification of Trust by Purpose

Trusts are created to accomplish a specific purpose.  That purpose will determine what the specific terms of the trust are.  The purpose of a trust is often reflected in the name of the trust.  Loads of information can often be gleaned from these titles.  Trusts also fall in certain tax brackets.  Many trusts are created to avoid certain taxes.  These often require very specific trust instruments.  The name of the trust will often tell you all you need to know about the trust instrument without even having to read it.

 

Trusts are useful, yet complex, legal instruments.  They are created to accomplish a variety of purposes.  Generally their purposed can be discovered by determining how the trust is classified.  These very general classifications determine how a trust functions.  Before you begin to construct a trust be sure to decide what exactly you are looking to accomplish.  Once you know what to accomplish consult an attorney who should be able to help you determine which classification of trust is right for your situation and what you want to accomplish.


 

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Benefits of a Trust

Many people do not know what a “trust” is.  A “Trust” in the legal sense defines a situation where property is held by one party for the benefit of another.  It is helpful to think of a trust as a special place where ordinary property from your estate goes in and, as the result of some type of transformation, takes on a new identity and often is bestowed with “super powers” such as immunity from estate taxes, resistance to probate, etc.  Trusts are an important part of your estate plan when you want to leave money to your minor children.  They ensure that the money, which is managed by a trustee, is put away and only made available to them when they achieve certain requirements, such as reach a certain age or graduate high school or college.  Trusts can be complex, frustrating, time consuming to set up and oversee, and cost you money.  Therefore, you should think carefully and consult an attorney before deciding to set up a trust.

Benefits to a Trust

One benefit to creating a trust is avoiding certain taxes.  One common tax saving trust is an irrevocable life insurance trust.  If you have a life insurance policy, once you die the proceeds of that policy are added to your estate.  This can make an estate that was once not subject to federal estate taxes in to one that is required to cut a substantial check to the IRS.  However, if you set up an irrevocable life insurance trust, those funds sheltered from estate taxes.  Your estate or beneficiaries will still receive a payout but the money will go into a trust, hopefully avoiding expensive estate taxes.

Another benefit to creating a trust is avoiding probate.  If you place your assets into a trust you may be able to avoid dealing with the hassles associated with going through probate.  Probate can be an expensive and annoying matter.  By creating a trust it can be possible to avoid probate all together.  The terms of a will are also public where as the terms of a Trust are not.  For some families, this alone is enough reason to create a trust.

Another of the primary reasons for going through the trouble to create a trust is to ensure that your assets, or your beneficiaries’ assets, are protected.  Trusts allow you to protect certain assets even after they become a part of another’s estate.  For example, say you want to leave $500,000 to your son but you are concerned that before you even finish signing the check he will have spent the money.  You can use a trust to give him the money as you see fit, whether it be in small increments or after he meets certain qualifications.  This way the money will be protected from you son’s impulsiveness.

The massive increase in the cost of higher education has created an increase in trusts intended to pay for your children’s, grand-children’s, other relatives’, or even non-relatives’ (employees’ or friend’s children for example) education.  The money can be specifically designated for college tuition or living expenses if you so desire.  The trust fund can be set up with a no-school, no-money restriction ensuring that the money is only used for educational purposes.

Trusts can also be used to fulfill civic aspirations by benefiting a certain charity or other type of institution.  Many people are attracted to helping others by giving to charity.  A trust can be set up to give to charity while you are still alive and continue to pay out the remainder once you pass away.  You may also set up the trust to give money for a set amount of time and then pay the remainder back to you or your estate.

Trusts represent an interesting tool used for estate planning.  They can help ensure that property is maintained the way that you intend, even after it passes to someone else.  There are almost infinite ways to set up a trust.  They can be extremely complex and often require very experienced and talented lawyers to create and sort out.  Although they are complex, trusts have several benefits over the traditional will.  There can be more restrictions about the way that your assets are handled, you can avoid taxes, and the terms of a trust can be made to remain private.  For all of these reason I would highly recommend consulting an attorney about a creating a trust when you are planning your estate.  They can be an invaluable tool to save yourself and your family time, money, and hassle.

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How to Create a Will: Should I Hire an Attorney?

Creating a will can be a frustrating and confusing process.  There are tons of legal websites offering what they describe as “easy” ways to create your own will and testament.  If you have some legal background this may be a very useful and cost effective way to create your will.  However, if you do not come from a legal background, I would be somewhat wary of using these sites.  If you can afford it I would highly recommend hiring an attorney to advise you while setting up your will.  If you have some form of legal background and would like to attempt to set up your own will the best place to start is any of the websites offering the necessary forms.  Based on reputation I would go with either legalzoom.com or legacywriter.com.  Acquiring these forms is only the beginning.  Filling them out can be a long, frustrating, process.  You must be well versed in the correct process for filing a will.  That is why I highly recommend hiring an attorney.  The estate planning process varies from state to state.  You do not want to pass away and only then have your family discover that your will is invalid because you filled it out incorrectly.  So how do you find the right lawyer for you?  Here are several easy tips to find the right attorney to help you with your estate planning.

Ask Family, Friends and Business Associates for a Referral

The easiest way to find a competent attorney is to ask people you trust if they know of one.  Chances are that someone in your family or circle of friends has used a lawyer to set up their will.  If they had a good experience there is no reason that attorney can’t help you.  Even if the attorney is not located within your immediate area, it is possible in today’s world with  modern technology to work with the attorney long-distance and still get the same results as the person who referred you.  Just make sure that the attorney is licensed in the same state where you reside.

Ask Other Attorneys You’ve Worked With for a Referral

Chances are that if you have worked with an attorney before in other parts of the law, they know someone who practices estate planning.  If you have bought a house or set up a business you probably worked with an attorney.  Go ahead and give him or her a call.  Lawyers are always very happy to refer their clients to other attorneys who do not practice the same type of law.  This encourages referrals from the other attorney coming back their way.  Also be sure to ask your lawyer who did his or her own personal estate plan.   Many non-estate lawyers will not even attempt to create their own estate plan.  There is a saying, “A lawyer who represents himself has a fool for a client” and this definitely holds true regarding estate planning.

Contact the State or Local Bar Association for a Referral

Almost every bar association keeps a list of the attorneys registered with it and will happily refer you to one or two who specialize in estate planning.  To locate a bar association in your area do a Google search beginning with the name of your state or city and ending with “bar association”.  If you cannot access the internet simply look in the telephone book.

Check Out Advertisements

Almost all lawyers advertise in one form or another, whether it be print, television, or radio.  Bar associations strictly regulate attorney advertisements to ensure that the lawyers do not advertise falsely.  However, you should be sure to vet the attorney you choose carefully.  Be sure they are familiar with estate planning and the local rules that govern your jurisdiction.

 

Hiring an attorney to assist you with your will is almost always necessary.  I would not recommend attempting to do your estate planning on your own.  No matter what those websites promise, they cannot offer you the same personalized care and attention as an attorney.  I understand that hiring an attorney can be a very expensive proposition.  But remember that lawyers are expensive for a reason.  They offer specialized services that not everyone can perform.  Law school is not a walk in the park.  They have been prepared by years of intense study to deal with the frustrating complexities of the law.  Estate planning is a very specialized and complex area of the law.  Be sure that you hire an attorney with experience doing wills in your jurisdiction.  If you follow these tips, finding an attorney and creating a will should be a breeze.

 

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Why You Should Create a Will

Wills can be complicated and confusing legal instruments.  The term “will” is tossed around a lot and many people are confused about what exactly constitutes the legal definition of a will.  A will is legally defined as a declaration by which a person, the testator, names one or more persons to manage his estate and provides for the transfer of his property at death.  You are not required to have a will but I highly recommend that you consider creating one.  They can ensure that your loved ones are provided for after you pass and distribute your assets the way you want.  These days wills are not difficult to create.  There are a wealth of lawyers and websites offering help.  I hope to offer you a quick overview on why you should take the time to create a will.

Why Create a Will?

Wills serve several purposes.  First, they are a great way to ensure your family is cared for.  If you do not have a will your estate will be distributed to your heirs in accordance to your state’s inheritance laws.  However, this kind of distribution may not reflect your personal wishes.  If you wish to omit an heir from your inheritance for any reason, you can do that through your will.  You can leave money or gifts to friends, charities or religious organizations in your will.  Without a will your favorite charity, place of worship and close friends will not be entitled to any inheritance from your estate.

Creating a will saves your family an immense amount of time in case of your passing.  If you lack a will, your family must petition the court for administration instead of probate, the legal proceeding used to settle the estate of a person who dies with a will.  Administration proceedings  take longer than probate proceedings because the state inheritance laws must be considered as inheritance has not been prepared and laid out in a document.  The cost of an administration proceeding generally will cost more than a probate proceeding.  It is possible that with a will your family may pay lower estate taxes, depending on your estate’s total value, state laws and the structure of your will.

If you have minor children a will can be even more important.  In your will, you can name a legal guardian for your minor children. The guardian must be at least eighteen or twenty-one years old (depending on the laws of your jurisdiction) and must be mentally competent. The legal guardian you name will take care of your children after your death. If you do not have a will, or your will does not name a legal guardian, your children may be placed under care of your closest living relative.  That relative may not have been your first choice.

Naming an executor is also an important function of a will.  An executor is the person who will manage your estate.  They will distribute assets to your heirs and others named in your will, and pay your debts after you pass. Selecting and naming an executor is absolutely vital during the will preparation process because your executor has numerous legal responsibilities and duties.  If you chose an executor who is unwilling to act as such, your will may not be probated.  An executor who behaves in a dishonest or neglectful way may harm your heirs, and your estate’s assets may dwindle as a result.  Therefore, be sure you choose you executor carefully.  Be sure they have a vested interest in the well being of your heirs and estate.

A will is a vital part of ensuring that your family and assets are taken care of after you pass away.  Obviously people do not enjoy thinking about passing away but it is a reality we must all face.  You have worked your entire life to acquire and ensure the safety and security of your loved ones.  It is imperative that you set up some kind of plan where your estate is taken care of according to your wishes.  Although there are various online resources proclaiming to be cheap and easy ways to set up a will, I would highly recommend hiring an attorney.  An attorney will be able to give you one on one counseling about the best ways to protect your family and your assets.  They also should be knowledgeable about the specific requirements of your jurisdiction.  Laws governing estate planning vary greatly from jurisdiction to jurisdiction.  Therefore, it is imperative that you find an attorney knowledgeable in the laws of your jurisdiction. Wills can be a tricky business but they are necessary to ensure that your loved ones are taken care of and that your assets are distributed the way you want them to be.

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