Nov 25

Wills & Trusts: The Basics

Wills & Trusts: The Basics


What is a “Will”?

A will is a legal document, signed and witnessed in accordance with state law, in which a person specifies how their estate will be dealt with after their death, specifically:

  • Who will receive real estate or personal property after your death.
  • How the property or funds will be distributed.
  • Who will be the guardian of your minor children.
  • Who will be the executor of your estate.

Why Do You Need a Will?

You need a will in order to legally formalize your wishes.  Your will allows you to:

  • Choose the person who will serve as guardian of your minor children after your death.
  • Control who inherits your property (real estate property, home, cars, boats, jewelry, furniture, family heirlooms, cash, investments, businesses, etc.) after your death.
  • Choose who the person who will serve as your executor and distribute your property to beneficiaries according to your wishes.
  • Prevent fights amongst family members over property since your wishes are clearly expressed in writing.

What if You Die Without a Will?

If you die without a will in place, state law will control distribution of your assets and the court will make decisions for you.

  • The court will apply probate rules to determine the method and manner in which your property is distributed, which may or may not match your wishes.
  • The court will appoint a guardian for your minor children.
  • The court will appoint an administrator to settle your estate and distribute your property.



What is a “Trust”?

A trust is an arrangement in which one person (the “trustee”) holds and manages property for the benefit of another person or persons (the “beneficiary” or “beneficiaries”).

What’s the Difference Between a “Living Trust” and any other Trust?

A “living trust” is a trust that you set up and fund while you are alive. The legal term for such a trust is “inter vivos.” A trust that becomes effective only upon your death would not be a living trust. This type of trust is called a “testamentary trust.”

Should I Use a “Living Trust” to Avoid Probate?

Possibly. Living Trusts are not for everyone, but they are recommended in a number of situations:

  • Clients who want to save on probate costs (the savings on court costs and probate legal fees almost always exceed the upfront cost of having a Living Trust prepared)
  • Clients who want to avoid court filings and associated delays in estate settlement (no probate court filing is required to settle property in a Living Trust)
  • Clients who have children from a prior marriage (may help to avoid a Will contest)
  • Clients who want to cut a spouse or child out of their Will (may help to avoid a Will contest)
  • Clients who for any reason anticipate a dispute or Will contest after their death (may help to avoid a Will contest)
  • Clients with health concerns (allows someone to manage your affairs if you become incapacitated)
  • Clients who value privacy (Living Trusts are a private matter, while Wills become a public record after you die)

We are happy to discuss whether a Living Trust would be appropriate for you.

What are Trusts Used For?

Trusts can be used for many purposes. For persons who are elderly or incapacitated, setting up a trust with an institutional trustee (such as a bank or trust company) provides professional asset management and practical assistance, such as payment of monthly bills. Trusts can also be an important estate planning tool for those seeking to avoid federal estate taxes, make charitable gifts, or protect assets for future generations.



What is Estate Planning?

Estate Planning is the process of developing a strategy for the distribution of your property after your death, so that your property goes to the persons you want to benefit, and in a way that minimizes or avoids estate taxes.

What is Probate?

Probate is the official court proceeding that determines the validity and authenticity of a Will, establishes the process of gathering the assets of a deceased person, paying any outstanding debts, last illness expenses and probate costs, and then distributing the remaining money and property to the appropriate persons in accordance with the deceased’s Will or in accordance with Georgia law, if there is no Will.

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