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Estate Law (Wills & Trusts)

Even if you are young and just starting out, you are likely to have assets. What happens to those assets in the unfortunate occurrence of your death is defined by state laws and a will or trust, or perhaps both. There are certain situations in which it is worse to have a will than not to, so when is the appropriate time to have someone write your will?

Do I need a will?

Yes, assuming you are at least 18 years old and have assets. It is best to specify what will happen to those assets in the incident of your death.

What is a living will, and what is the difference between a living will, a last will or a trust?

A living will gives directions about what to do with your assets if you are still alive, but unable to make decisions due to physical or mental sickness. Whether or not a person is of sound mind and able to make decisions for himself is evaluated by a doctor. A last will only takes effect upon your death and disributes the deceased’s assets to the people specified in the will. A trust is more versatile, and designates the original owner’s assets to any third party whether or not the original owner is dead or alive or the beneficiary is alive. The trust is the ideal mechanism to provide something for a child who is not yet born.

It is important to use very specific language in a will or trust of any sort. Unclear or ambiguous language can cause arguments between the possible beneficiaries, and then most of the money ends up going to attorneys. That is why most owners hire an expert to assist them in writing the will or trust.

What happens if I die without a will?

The relevant state decides what happens to your assets. In some states, half of the assets are given to the spouse and the other half are distributed evenly to the children. The process involves a judge or magistrate.

What if I forget to include someone in my will, or if circumstances change after it is written?

In the will, the owner of the assets designates a person as the executor who has the final say about the distribution of assets that are not mentioned in the language of the document. The executor should be the person that the owner of the assets trusts the most, and is often the spouse or one of the children.

Which, between the making of a will or trust, is the more simple process?

The will is one of the simplest legal documents to write, but the asset distribution usually goes more quickly with a trust. A trust also offers more options and a more strict interpretation than a will, and can be utilized in different and more complex ways.

What is probate?

Probate is the legal process that the courts use to distribute assets. The more property in an estate, the more likely it is that probate is necessary. Formal probate is not necessary in every case of an inheritance.

How shall I know whether to make a will or a trust?

The help of an expert is recommended and, for large estates, the answer could be both. There are more than ten different types of trusts and it is hard to differentiate one from the other. If the opportunity to formally compose a trust is not available, a last will is something that you can write yourself.

Can I change or revoke my will?

You can. You can rewrite your will entirely and reinstate a new one, or make a codicil, which is an amendment. Either one needs to be signed and notarized by a legal official. After you have made the desired changes, do not modify the will in any way, or the probate judge may declare the changes null and void.

What about my debts? How do they apply to my will or trust?

Your debts must be settled before any assets are distributed. When one has a debt, your assets are not truly assets and the debt must be settled before the distribution of property or financial accounts. If there is an outstanding debt with a bank that must be paid, it is the responsibility of the heirs to pay the debt if they want to obtain the property, and they can do that as a group, or one may step forward to pay the debt. That person will be more likely to inherit the property than the others who did not offer any assistance.

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