Estate Planning Law FAQs

A Will must be admitted to probate in a court process in order to gather assets and carry out the terms of the Will. In contrast, a Trust takes legal effect immediately upon execution of the Trust agreement and funding of Trust assets.

Will-based plans are advisable for individuals who: (1) have smaller estates and do not know anyone suitable and willing to serve as a Trustee, (2) are not concerned about their heirs receiving their inheritance all at once through a court procedure, (3) cannot afford a Trust-based plan, or (4) have no interest in learning about Trusts.

Trusts may be advisable if there is: (1) a need to provide for minor beneficiaries, (2) a desire for financial management, (3) a preference to handle matters privately and avoid court procedures, (4) any concern about heirs: losing public welfare benefits, filing Will contest litigation, squandering their inheritance, getting divorced, filing for bankruptcy, becoming incapacitated, or having substance abuse or mental health issues.

Documents typically included in a Will-based plan are a Will, Power of Attorney, Medical Power of Attorney, Advance Directive, and HIPAA Release Form. Additional documents often included are a Letter of Instruction to the Executor, a Designation of Guardian in Advance of Need, a Designation of Guardian for Minor Child, and an Agent for Disposition of Remains. Most estate plans include transfer deeds for any real estate as well.

Documents typically included in a Trust-based plan are a Trust Agreement, a Certification of Trust, a Certificate of Trust, a Pourover Will, an Assignment of Interest, a funding deposit, an asset inventory, a Trust diagram, Funding Instructions, a Memorandum of Personal Property, Power of Attorney, Medical Power of Attorney, Advance Directive, and HIPAA release form. Additionally, most Trust-based plans include real estate deeds to transfer all real esate into the Trust.

If no changes are needed a Will does not need to be updated. A Will must be updated if you need to change your Executor, Testamentary Trustee, Benficiaries and/or any of the dispositive provisions in your Will.

Yes. Estate planning can definitely help your family avoid probate. Trusts are the primary estate planning tool for avoiding probate; however, beneficiary designations, succession plans in business agreements, and transfer deeds can also be used to avoid the necessity of probate court.

A Trust gives you more control over the distribution of your assets. Trusts allow for
incapacity planning, probate avoidance, privacy, asset protection, divorce proofing, financial management, and investment management. There are many different types of trusts, but the most common one is the revocable living trust for estate planning.

A power of attorney grants your agent the power to make financial and legal decisions on your behalf. It is important because if you become incapacitated you will need someone to take over financial and legal decisions. If you become incapacitated and have not already executed a power of attorney, a guardian would be need to be appointed to make financial and legal decisions for you.

You should bring a completed estate planning information form so that you can have a productive estate planning session from the very start.