These are questions that are often asked when one thinks about leaving this earth. With these questions come questions such as “What can I do to make sure my family is taken care of when I’m gone?” “Where do I start?” “What is exactly is a Will?” “What is a Trust?” and “Which should I create a Will or a Trust?”
As mentioned in my blog “What Will Happen If You Get Sick Or Die Tomorrow? it is very important to have a plan set in place in case of unexpected illness or death. However, in order to develop such a plan, you must first know the basics. This blog provides very BASIC information on Wills and Trusts which may help you at the least determine which is right for you.
ADVANCED HEALTHCARE DIRECTIVE/LIVING WILL
An Advanced Healthcare Directive (also known as a living will) is a legal document that designates a person of your choice to act as your Health Care representative in the event that you become ill and are unable to make your own medical decisions. On this document, you can also designate someone to take care of your children and your finances if you are unable to.
A will is a legal document which becomes irrevocable upon death that gives certain instructions to be carried out after the creator of the will (The Testator) dies. This may include the distribution of assets (money and property), and may also provide a choice of guardians to care for minor children.
A will can name:
- Beneficiaries – (family members, friends, spouse, domestic partner or charitable organizations, etc.). Beneficiaries receive assets according to the instructions in the Testator’s (the creator of the will) will. The Testator may list specific gifts, such as jewelry, other personal property, real property, or a certain sum of money, to certain beneficiaries and may also provide instructions on what should be done with all remaining assets that the will does not dispose of by specific gift.
- A guardian for minor children – The testator may nominate a person to be responsible for the personal care of their child (ren) who are under the age of 18 if the child’s other parent died or is unavailable for other reasons. The Testator may also name a guardian-who may or may not be the same person-to be responsible for managing any assets given to the child, until he or she is 18 years old.
- An executor – The Testator may nominate a person or institution to collect and manage his or her assets, pay any debts, expenses and taxes that might be due, and then, with the court’s approval, distribute assets to beneficiaries according to the instructions in the will.
*The executor serves a very important role and has significant responsibilities. It can be a time-consuming job.
FORMATION OF A WILL
Most states have the same and/or similar requirements that must be met in order to create a Will. In order to form a Formal Will in California, the following must be met:
1. The testator must sign the will or direct another to sign for him in his presence.
2. A will must be signed by at least two persons each of whom (1) were present at the same time the will was signed by the Testator or when the testator acknowledged his signature on the Will and (2) understands that the instrument they are witnessing is the Testator’s Will.
A trust it is a written legal document that partially substitutes for a will. The owner of a Trust is called a “Trustor”. With a living trust, certain assets (one’s home, bank accounts and stocks, for example) are put into the trust, administered for the Trustor’s benefit during his/her lifetime, and then transferred to his/her beneficiaries when he/she dies.
Many people name themselves as the Trustee in charge of managing their Trust’s assets. This way, even though the Trustor’s assets have been put into the trust, the Trustor can remain in control of his/her assets during their lifetime. The Trustor can also name a successor Trustee (a person or an institution) who will manage the Trust’s assets if the Trustor ever becomes unable or unwilling to do so him/herself.
A living revocable trust can help ensure that the Trustor’s assets will be managed according to his/her wishes-even if the Trustor becomes unable to manage them him/herself.
At the Trustor’s death, the trustee-similar to the executor of a will-would then gather all of the Trustor’s assets, pay any debts, claims, and taxes, and distribute the remaining assets according to Testator’s instructions. Unlike a will, however, this can all be done without court supervision or approval.
See California Probate Code section 6100-6200 and 17200