Wills and Trusts Decoded
Many people come to us wanting to create a will and trust. Yet, many are not aware that these two documents cover two different areas. While both specify what is to be done with your possessions, the timing and the execution of the documents wishes are not the same. However, both are highly useful documents that are essential to estate planning and many prefer to have both. While both a will and a trust distribute property as you deem fit that is nearly all they have in common.
A will is a document that is created in order to distribute property at the death of the individual. It only takes effect after death and the terms are executed by a legal representative. A trust is effective as soon as it is created, at death, or afterwards (should it be beneficial). It is executed by a trustee. The trustee can be an individual as well as a company, bank, or law firm.
In a will, if an item is not entirely in your name when you die, it cannot be included to be distributed. It will not include any property that is held jointly, or put in a trust. A trust, however, will only include items in it that you submit. Meaning, any property that is intended to be included needs to be transferred to the trust. This may require larger assets to be retitled. Due to this step, a trust takes a bit longer to create and is more difficult to maintain.
Probate is a process that can take more than a year while the government validates documents and assets before distributing. In order for a will to be executed, it must go through a probate process, unless the estate is small, under $100,000. However, this process may be bypassed by having a trust in place. The trust successor will need to distribute all of the property as per the wishes of the trust, but will be done without court supervision. Trusts save time and money to the beneficiaries.
Wills, by their nature, become matters of public record. This is because of the probate process. Whenever something goes through probate, it becomes a matter of public knowledge, and therefore, a will can be viewed by anyone wishing to find it during the probate period. Alternatively, as a trust may not need to go through probate, it can be kept entirely private.
Deciding which one is the best for your situation largely dependent on what is being included. For instance, if you have children, a will is necessary because a trust does not name a guardian to your children; a will is one way to transfer guardianship. Yet, if you have a business and do not want it tied up for up to a year in a probate process, a trust may be the best option for you. You may also choose to have both: a trust to include all the larger items, and a will to specify funeral arrangements and take care of all of the items not addressed in the trust. If neither is created by the time of death, items in question will be distributed by state laws, often times not the way you would approve of, without regards to financial situation or family issues. If the state cannot find any living relatives, then all of the items become government possessions.
Whatever you situation may be, having the assistance of a San Jose estate planning attorney is extremely helpful. If you are in the San Jose area and are interested in finding out more about wills, trusts and other estate planning matters, we are here to help. You can call to set up a consultation now at 408-918-0010. We look forward to being able to assist you in your estate planning needs.