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Do I Need to Make a Living Trust, or is my Will Enough?

Part of estate planning is determining how you will distribute your property and to whom at death.  It is very important to have a will, otherwise your property will be distributed by intestacy, and may not be distributed according to your wishes.  While wills and trusts have some elements in common, they serve two separate functions.

In New York State, a will is a written document that must contain a signature at the end witnessed by two people.  The purpose of a will is to name beneficiaries who will receive property after your death.  A will is revocable and can be destroyed by a physical act such as burning or tearing, by operation of law such as divorce, by presumption (for example, after your death the will cannot be found), or by a subsequent will.  Accordingly, a will may be revised many times during one’s life.  In a will, an executor for the estate and guardians for children may be named, and instructions for wishes to be carried out may be listed.  Upon death, a will goes through the probate process and becomes a public document.

A trust is a relationship between the person who funds the trust (the settlor), the trustee (the person who manages the trust), and the beneficiary (the person who benefits from the trust).  As a trust does not go through the probate process, it is much more private than a will.  Avoiding probate is both cost and time effective.   A trust also allows the beneficiary to enjoy gifts from the settlor of the trust during the settlor’s lifetime so that the settlor can see the enjoyment the beneficiary gets from it.  Additionally, a trust is a good option if you want to be able to distribute funds to children who have not yet reached the age of majority.  Generally, living trusts are revocable and allow for the continuous transfer of assets.  Another benefit of a living trust is that, unlike a will (unless you have appointed a power of attorney), if you become incapacitated, the trustee will take over.

It is best to consult with an experienced attorney to determine whether you should consider making a living trust.  Contact an experienced elder law attorney who can best assist you in planning your estate.  Call the Law Offices of Tanya Hobson-Williams toll free at (866) 825-1529 or (718) 210-4744.