Most people have heard that having some sort of an estate plan is a good thing. However, many of us do not take the first steps to get that estate plan in place. One reason is that many do not understand the differences between a will and trust – and dying without either.
Let’s look at what would generally happen if you die without a will or trust (intestate), with a will, and with a revocable living trust. Assume you have two children, but no spouse:
1. Intestate. If you die intestate, your accounts and property will go through probate. Probate allows all the world to know what you owned, what you owed, and who got what. Your mortgage company, car loan company, and credit card companies will all seek payment on balances you owed at the time of your death.
Because your death has been published to alert valid creditors, it is not uncommon for predators to seek demand for payment – even if they are not owed anything.
After that, state law will decide who gets what and when.
- For example, if your only heirs are your two children and you have not provided any instructions, state law will dictate that proceeds are divided equally.
- A child over the age of 18 will get their share immediately under Michigan law, although some states may delay them getting their share until the age of 21.
- A child under the age of 18 will find that the probate court must appoint a conservator to manage their share until that child becomes an adult.
- The conservator appointed may not be a family member and will receive fees for their services.
- Most importantly, if you die without a valid will, the court, not you, will decide who raises your minor child.
Bottom line—dying intestate, without a will or trust, allows state law and the probate court to make all the decisions on your behalf – regardless of what your intent might have been. And, all probate proceedings are open to the public, nothing is kept private.
2. Will. If you die with a valid will, your accounts and property will still go through the probate process. After creditors have been paid, however, the remaining accounts and property will go to whom you have named in your will.
- If you want to leave money to your children and name a guardian for the minor, the court will usually abide by your wishes.
- You can also decide to leave money to charity, a relative, or your neighbor.
- Even with a will, probate is still a public process. Aggressive creditors are still an issue.
Bottom line—while a court oversees the process, having a will allows you to tell the court exactly how you want your affairs to be handle, although a public probate proceeding is still guaranteed.
3. Trust. If you have created a trust, you have taken control of your estate plan and your accounts and assets. Assets owned by the trust are not subject to the probate process. Therefore, the details and process of transferring accounts and property to your intended beneficiaries is private.
In the trust, you will have named a trusted individual or entity as trustee to manage your affairs, with specific instructions on how and when your accounts and assets should be dispersed.
- Important reminder — a trust must be properly funded in order to bypass probate.
- Legal ownership of your accounts and property must be changed from your name as an individual to the name of the trustee of your trust.
- Legal title may change, but you can be named as the initial trustee so that you still maintain complete control.
A special kind of will, called a pour-over will, is still used as a safety net to get any accounts or property inadvertently or intentionally left out of your trust into the name of the trust. The will is also where you name guardians for any minor child.
Bottom line — A trust allows you to maintain control of your accounts and property through your chosen trustee, avoid probate, and leave specific instructions so that your children are taken care of – without receiving a lump sum of money at an age where they are more likely to squander it or have it seized from them.
Don’t let the any confusion between a will or trust slow you down. Contact our office today. We will help you put together an estate plan that works for you and your loved ones, whether it be a will, trust, or both. We are available for in-person and virtual consultations.