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Estate Planning Basics

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Last Will and Testament

Commonly referred to as just a “Will” (not to be confused with a Living Will) is simply post-mortem planning document that explains one’s final wishes as to who gets the testator’s (one who makes a will) stuff after one dies. Once signed properly, a will only has any use or meaning upon one’s death. Only upon the passing away of the one making the Will, does the actual document have any legal effect or impact – it and must be probated through a court proceeding – which can be a long and expensive process. Probate just means to "prove." The court makes the testator prove what he/she wants to do with his/her stuff upon passing. A personal representative (“Personal Representative” is the term used in Florida. Other states refer to the personal representative’s role as the “Executor”) is named to handle the administrative aspects of a Will. The named personal representative has specifically enumerated and statutorily granted powers. A Will has “specific devises” – i.e. “Jenny gets ½ of what is in my bank account;” and if there is anything left over, a “residue;” – i.e. “and the rest to my children.” The residuary clause explains what happens to the deceased’s assets that are left over after the specific devises have been honored.

Wills must be signed with certain formalities.  

Revocable Trust

Revocable Trusts are a popular estate planning tool to use with the Last Will and Testament, because (unlike a Will) Revocable Trusts are not required to go through probate (although one may choose to do so). A Revocable Trust goes into effect upon its signing – they come alive and have legal meaning immediately, not just upon the death of the one establishing the revocable trust.

The law treats a Revocable Trust like a fictional living entity, like a corporation. Unlike the Last Will and Testament (which only comes “alive” upon one’s death), a major difference between a Will and a Revocable Trust is that the Trust comes alive upon signing. The Trust can do certain things while the grantor is alive and it can do many things, including taking care of distribution of assets upon death, similar to a will (except utilizing a revocable trust greatly shortens, essentially avoids, the probate process). A Trust, again like a corporation, can own things/assets (e.g. bank accounts, property, real estate). An individual can transfer title/ownership from that individual into a trust. For example, once you have a Trust agreement set up, you can take that trust paperwork, walk into a bank with the trust agreement and simply tell them to change name of your individual account to the name of trust. You otherwise fund a trust by retitling assets.

Every trust has three parties: (1) a settlor/grantor, (2) at least one trustee and, (3) at least one beneficiary. The creator of the trust is referred to as the “settlor” or “grantor.” The settlor can appoint trustees, successor trustees, and co-trustees. Think of the trustee(s) like the board of directors of a corporation. In order to be effective, the trust must own assets.

Every trust must consider what happens if settlor or trustee become incapacitated. Trustee often works with settlor's agent upon incapacity. If settlor becomes incapacitated but not all of assets are in title of trust....then need a power of attorney. POA can then go grab individual's assets and either dispose of them properly or transfer title from individual's name into the trust.

Why Does Every Revocable Trust (used for estate planning purposes) Also Come with a Will? 

In other words: if I have a revocable trust, why do I also need a will? If there are assets that remain titled in the name of the deceased (not in name of the Trust), those assets must be probated. What your elder law attorney will do is set up what is commonly referred to as a Pour-Over Will. Any assets which, for whatever reason, were not titled in name of revocable trust will be subject to a properly drafted Pour-Over Will. All the Pour-Over Will says is: if there are any assets that are not in name of trust, then trust becomes the sole beneficiary of the Will. It’s just a backup...not ideal because still need to probate a Pour-Over Will.

Power of Attorney

The power of attorney (click link above for more detail on different types of powers of attorney) is non-assignable and non-delegable. So, if the named trustee of your revocable becomes incapacitated, even if that trustee has his/her own power of attorney….the trustee’s agent / attorney-in-fact, is NOT able to conduct trust business as trustee unless trust specifically provides for this.

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