WILLS AND TRUSTS

Both Wills and Trusts are documents in which you name a person to handle your estate when you pass away and who the intended beneficiaries are. However, Wills must be probated, that is, submitted to the Court in the County where you were domiciled prior to your death and the Executor must wait to be appointed. In New York, beneficiaries who are not provided for in the Will may present objections and delay the administration of the estate. Trusts do not require any court intervention in order for the Trustee to administer them after the person who created them is deceased. They can simple follow the wishes of the deceased person and begin marshalling assets, paying debts and distributing assets. Trusts also provide more opportunities for tax planning, creditor protection and Medicaid asset protection. 

It depends on your situation. Trusts offer easier administration, but they are more expensive to create than Wills so your particular wants and needs will determine if it is worth it for your to spend the extra money on a trust-based plan. 

The law will dictate who will inherit your estate. It’s typically your closest relative or relatives.

It’s a good idea to sit down with your attorney every 3-5 years to review your plan and make sure it is still accomplishing your goals. Of course, if there is a death or change in health, you should contact your attorney sooner to make any necessary updates.

Technically, both can be contested if there is cause, however, Wills often invite litigation because to probate the document you need the consent of any individual interested in the estate. If that person was left out of the Will, or not given their “fair share,” they have an opportunity to object before the Executor can go forward.  Trusts are more difficult to overturn because there is no court proceeding inviting contests to go forward. The burden is on the objectant to find a reason why the trust is not valid. 

No. A Living Will is an advance directive that sets forth your desires with respect to accepting or refusing end-of-life medical treatment in the event you can no longer communicate your wishes directly. A Health Care Proxy allows you to designate an agent to make health care decisions for you in the event you become unable to make them for yourself.