A Will allows you to control what happens to your probate property. The Will enables you to designate a personal representative to probate your estate and it enables you to designate a guardian for your minor children. If a minor child is an heir to your estate, and you did not have a Will, then the court would have to appoint a guardian for that minor child and the guardian would hold the money until the minor child reaches the age of eighteen. A Will allows you to create a trust to hold those assets and designate an older distribution age, such as twenty-five or thirty, or any other age you may desire, but still provide for the child’s earlier needs according to your directions. If you have a disabled child, it is especially important that you have a specially drafted trust to meet the needs of your disabled child.

After you have had a Will drafted for you and it has been signed and properly witnessed, then you should store it in a safe place, such as a safe deposit box, or your safe at home, or with the local Probate Court, or wherever you keep your important documents. It is important to make sure that your family knows where your original Will is kept and that they can get at it after your death.

A trust is a relationship in which a person or entity (the trustee) holds legal title to certain property (the trust property or trust corpus), but is bound by a fiduciary duty to exercise that legal control for the benefit of one or more individuals or organizations (the beneficiary), who hold “beneficial” or “equitable” title. The trust is governed by the terms of the (usually) written trust agreement and local law. The entity (one or more individuals, a partnership, or a corporation) that creates the trust is called the trustor, settlor, grantor, donor, or creator.

Practitioners commonly distinguish between inter vivos and testamentary trusts. A person who is living at the time the trust is established creates an inter vivos trust. A trust created in an individual’s Will is called a testamentary trust. Because a Will can become effective only upon death, a testamentary trust is generally created at or following the date of the creator’s death.

A living or revocable trust is established and maintained during the grantor’s lifetime and may be changed or terminated during that time. Oftentimes, a revocable or living trust is used to avoid probate. By creating a trust, the grantor transfers control of the assets to a trustee. In the case of a revocable trust, the trustee may be the grantor. The specific powers and duties of the trustee and when the trust income and principal may be distributed to the beneficiaries are determined when the trust is initially drafted. In some instances, you may want a trust to be created to reduce the amount of federal or state estate taxes which may be due at the time of your death. An irrevocable trust can also be created to transfer assets out of an individual’s estate such as an irrevocable life insurance trust. In addition, a married couple may need a marital property agreement to equalize their estates which may also save estate taxes upon the death of the second spouse. Second marriages can provide a need for special planning to avoid disinheritance of children from the first marriage and still provide for the second spouse.

If you are looking for a Will and/or a Trust, please call Martinson Law Offices and we would be happy to use our knowledge and expertise to create these documents for you.