Wills and Trusts

Approximately 60% of the individuals in the United States die without a Will. Such a mistake allows the State to determine who gets an individual's assets. In Massachusetts if you die without a will, your surviving spouse is required to split your estate with your children, regardless of their age or your relationship with them. A Will can prevent that from happening.

A Last Will & Testament is a written document directing how and to whom your assets shall be distributed at the time of your death. The document also can identify a guardian for minor children; however, it is important to remember that a Will as seen on the timeline only comes into play upon your death. The Will controls all probate assets. The Testator (person executing a Will) names an Executor ("personal representative") who is responsible for marshaling the assets of the estate paying the estate's debts, and distributing the probate estate in accordance with the Will.

A number of Will types exist. The simple Will handles the transfers of the probate property directly to the beneficiaries. A Will with a testamentary trust allows the probate assets to be held until the beneficiary has satisfied a particular condition, such as requiring that a minor reach the age of majority. Lastly, a pour-over Will works in conjunction with a Revocable Trust. Any probate assets are marshaled by the Executor and then distributed to the Trustee of the Revocable Trust rather than outright to beneficiaries as in the other two types of Wills.

A Revocable Living Trust is a very powerful estate planning vehicle. It provides control, privacy, probate avoidance, estate tax avoidance or minimization. During the lifetime of the Grantor (the individual establishing the Trust) the Trust may be amended, revoked, or terminated. Upon death, the Trust becomes irrevocable, which ensures the Grantor's wishes are adhered to. A Guardian may be appointed for any minor children in the Trust, which has an advantage over appointment in a will due to the fact that the Trust is effective throughout a person's life and beyond.

For maximum effectiveness it is best to fund a trust during ones lifetime. To fund a trust one simply changes the ownership of an asset from an individual to the Trustee of the Trust. Once the Trust owns the asset, probate will be avoided entirely for that asset. In addition, during periods of incapacity the Trustee in a private manner can administer the Trust for the Grantor until the Grantor regains capacity. The need to have a Guardian appointed for the Grantor or risking a Power of Attorney not being accepted is therefore avoided. Any asset that does not get funded into the Trust during your lifetime will get into the Trust by virtue of the pour-over Will outlined above. The disadvantage in the Will performing the funding is the need for the probate process and its associated time delays and expenses.