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RobertJDFL, Attorney
Category: Estate Law
Satisfied Customers: 13478
Experience:  Experienced in multiple areas of the law.
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What is the difference between a Last Will and Testament and

Customer Question

What is the difference between a Last Will and Testament and a Fourth and Fully Restated Trust Agreement for the ......... Revocable Luving Trust. What is the difference? Why would the deceased need both documents. They seem to contradict each other.
Submitted: 1 year ago.
Category: Estate Law
Expert:  RobertJDFL replied 1 year ago.

Thank you for using Just Answer. I look forward to assisting you.

Both are estate planning documents used to distribute an estate, though they work in conjunction with one another. The trust is managed by a trustee. A "Fourth and Fully Restated Trust" means that the trust itself (at least portions of it) were amended four times. It is far less costly to amend a trust then have a new one written. Once a trust is created, assets are titled in the name of the trust and "placed into it", so to speak. This is sometimes known as "funding the trust."

The Will is what is known as a "pour over will" wherein the writer of the will directs that assets in the estate are to be distributed per the terms of the trust. In other words, if there are assets that never made it into the trust before the original grantor/trustee of the trust passed away, they will "pour over" into the trust and be administered however the trust directs.

Customer: replied 1 year ago.
What if a beneficiary went and stole assets of the estate without putting in the Trust for distribution?
Expert:  RobertJDFL replied 1 year ago.

Then the successor trustee could bring suit against them for return of those assets (or the financial equivalent). The trust has to be administered and the estate settled before final distribution can be made to ensure the debts and expenses of the decedent are paid.

Customer: replied 1 year ago.
What does it mean to Settle the Estate?Since it was the Widow who stole from the Estate, can she be held to pay the husband's credit card debt of $112,000? Arizona is Community Property. Or, do all the benefificiaries (3 sons) have to pay the debt.
Expert:  RobertJDFL replied 1 year ago.

Settling the estate is the process by which the successor trustee would administer the trust - take an inventory an accounting of the assets, gather information on what debts the decedent left, pay those debts from the estate assets, and the make distribution of what is left. The beneficiaries are not responsible for the final debts of the decedent, they are to be paid from the estate.

If these credit cards were in the husband's name only, they should have been paid from the estate assets. If those assets were taken improperly, a court can order that they be paid back, yes. Keep in mind that not everything is considered a trust asset or part of the estate. For example, jointly titled property between spouses (such as a joint checking account) would pass automatically to the surviving spouse. Similarly, anything like life insurance or retirement accounts that have pay on death/transfer on death clauses is paid directly to the named beneficiary or beneficiaries.

If the sons have concerns that the trust was not administered properly or things were not handled properly, it would be highly advisable for them to speak with a trust and estates attorney (many offer free or low cost consultations and there is never any obligation to hire someone).

Customer: replied 1 year ago.
Are the widow and 3 sons from another marriage responsible to pay the father's credit card debt in Arizona. The children did not make the debt why do they have to pay it off out of their Trust portions of 15% each. The widow gets the rest.
Expert:  RobertJDFL replied 1 year ago.

They are not personally responsible, no. The estate is - it is paid from the assets of the trust/estate. Before assets can be distributed, debts of a decedent must be paid. That's not specific to Arizona -that is the process of settling an estate/trust in all states. Being named a beneficiary of a trust or will doesn't guarantee that a person will necessarily receive anything, unfortunately (and I have worked on a fair number of estates where debts exceeded assets.

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