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Richard, Attorney
Category: Estate Law
Satisfied Customers: 55326
Experience:  29 years of experience practicing law, including tax and estate planning.
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What is the difference in having a will or a trust? Do you

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What is the difference in having a will or a trust? Do you need both?
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

Good morning. If you are referring to a living trust and a will, you do not need both. The living trust is set up during your life to avoid probate. You transfer your assets that would otherwise go through probate to the trust and at your death, there are no probate assets and thus no need for a will. It's possible if you don't do a living trust, and you have a will that addresses your probate assets, that you have another kind of a trust set up in your will...a testamentary trust and/or a marital trust...which means that instead of your assets going directly to beneficiaries they go to these trusts. These trusts are used for tax purposes and when beneficiaries are minors or possibly ill equipped to handle their financial affairs. Certain assets don't need to be dealt with either through a trust or a will because they aren't probate assets. These include the following: i) joint brokerage and bank accounts which vest automatically in the surviving owner upon the death of one owner; ii) real property held as joint tenants or tenants by the entirety, which also vest automatically in the surviving owner upon the death of one owner; and iii) assets with designated beneficiaries other than the estate such as life insurance and retirement accounts.

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Customer: replied 3 years ago.

I think I understand but need to clarify. I will set the scenario. My husband and I are in our 70's. We have just sold a rental property but it is on an installment, we received $5000.00 down and the balance of $30,000 is due to be payable in 7 years. If something should happen to both of us before this term expires who gets the proceeds or makes sure it is paid out? We do not have a will or any trusts set up. We also have 7 children. At closing yesterday I asked this question of the gal at the Title company and she said our trust would take care of it. We don't have a trust. We also have some IRS's, CD's, property, and our main home, some bank accounts not a lot in them.

Thanks for following up. Your IRA's likely have named beneficiaries so they will pass directly to those beneficiaries. With respect to the others, you can do this either by will or by living trust. If you do the wills, you simply designate who gets it if you and your husband die. Under that option, you simply have to do the will and nothing else at this point. If you elect a living trust, you must not only set up the trust agreement now, you must transfer your assets, including the installment note, to the living trust. Then, when you die, the trust agreement controls the disposition of the assets and there is no need for your estate to go through probate.
Customer: replied 3 years ago.

So a will goes through probate and a trust does not?

Why would anyone have a will then, if a trust is less problem at the end? Is the only benefit of a trust to avoid going through probate?

Yes, that is correct. It really depends upon the state and the difficulty of probate. A lot of people don't want to do the trust now because it involves a lot of expense up front...doing the trust agreement and then transferring all their assets to it. And, unless probate is really arduous, such as it is in California, then it doesn't create that much benefit. To be honest with you, most of the time the lawyers talk clients into the living trust so they can collect the fees now rather than later. :)
Customer: replied 3 years ago.

Makes sense! In a will can you set one person as the executor? Since we have 7 children and each is in a different place in their lives I would not feel comfortable in saying just split all 7 ways?

Yes, you can name any one or more persons as executor or co-executors. And, you can divide your assets in any manner that you choose. :)
Customer: replied 3 years ago.

Thank you! You have been a very big help. Do you also answer questions in regard to handling this sale on our taxes or is that someone else?

You're welcome! It's been my pleasure to help! You would need to post that as a new question in the tax category! I'm sorry!
Richard and 4 other Estate Law Specialists are ready to help you
Hi! I just wanted to let you know I'll be taking a short break. If you have any further follow ups, I will address them immediately upon my return. I just didn't want you to think I was ignoring a follow up if there is a bit of delay. I thank you for your patience and apologize for any inconvenience caused by my delay!
Customer: replied 3 years ago.

Thank you again, I will repost my question. Even though I am on a monthly prepaid I believe you deserve a bonus. I will complete that.

Thanks again

Thanks so much for the positive rating and the generous bonus! I appreciate your kindness and the opportunity to serve you! If I can be of assistance to you in the future, just look me up and I will be happy to help! For easy access, my bookmark is:

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