Q: What’s the difference between a “Will” and a “Living Will” ?
A: A “Living Will” is a directive which tells your family members and loved ones that you do not wish to be kept alive by artificial means in the event you develop a terminal condition. By contrast, a “Will” is a testamentary document that instructs how your property will be distributed at the time of your death. Many persons tend to confuse the two terms because they sound so alike. Each document is different however, and plays a very important part in your estate plan.
Q: What is a “Trust” and how does it compare to a Will?
A: A Trust (also called living trust or grantor trust or revocable trust) is a bona-fide entity which a person creates while in good health and while planning for future emergencies and ultimately- death. A Trust is a very lengthy document that, in essence, ‘holds’ a person’s property. The creator of a Trust is called a “Grantor” and is the person who decides what the parameters of the Trust will be. Every Trust has a “Trustee” and a “Beneficiary” as well. The Trustee is the person who is charged with responsibly administering the Trust. The Beneficiary is the person who will receive the Trust’s benefits. A very common practice in estate planning is for a Grantor to create herself a Trust and remain as the Trustee and Beneficiary. The Grantor’s attorney places special language in the Trust which a) allows the Grantor to make any changes to the Trust and do anything she pleases with the property in the Trust; b) governs how the Trust property will be administered while the Grantor is sick; and c) governs how the Trust property will be distributed upon the Grantor’s death. The Grantor will name a successor Trustee (sometimes a friend/family member or a bank) that will continue to run the Trust while the Grantor is sick.
Q: I don’t need a Will. My good friend told me that all I need to do is put my children on title to my bank accounts and residence and those properties will automatically pass to them upon my death without probate.
A: Your friend is partially correct. Putting another person on title can act to pass your property to that person upon your death. HOWEVER, your friend failed to look at the other factors that you will now have to face- such as having another person on title to that asset whose signature could now be necessary in order to do anything with that property (ie closing the account or a refinance or a sale). You can most likely accomplish the same objective with the use of a Will or by placing the property in trust. Furthermore, your loved ones/beneficiaries could receive certain tax benefits by not being on title with you and waiting until after your death to receive the property.
LANDLORD & TENANT
Q: Can I use a lease that I downloaded from the internet?
A: Many leases available to the public online or in “kits” sold at local office supply stores will have a visible disclaimer which warns the person that the publisher is not responsible for its content and that the information contained does not substitute for the advice of a lawyer. Having your attorney draft you a lease is advisable because there are many rights in your state that can be forfeited by not including them in the lease.
Q: What is “Probate” and why should I care?
A: When a person dies, his or her assets and personal possessions must be passed to the decedent’s family members or the persons who are designated to receive in the decedent’s last will and testament. Unfortunately, title to most types of property (such as real estate or motor vehicles) does not pass automatically to the beneficiaries. In order to legally take title to a decedent’s assets, a case must be opened in the probate court of the county in which the person resided or owned the property. Through the probate proceeding, the courts will supervise the distribution of the decedent’s assets according to the procedure prescribed by law.
Q: My loved one just passed away and owned assets at the time of death. What now?
A: Many clients will arrive at a probate lawyer’s office after already having tried to change or transfer the decedent’s assets on their own. Retaining a probate lawyer as soon as possible after the death of the decedent is highly advisable. In several situations, an individual acting without the advice of an experienced attorney can actually make it more difficult for a lawyer (who subsequently becomes involved with the case) to efficiently administer the estate.
Q: How long does it take to completely administer an estate?
A: The time period for completely administer can take anywhere from a few months to several years, depending on the complexity of the case and the amount of assets.
Q: What about creditors?
A: As part of the administration of an estate, the probate lawyer will notify a decedent’s creditors as provided by law so that they have an opportunity to present a claim against the estate once the case has been filed.