Estate Planning Through the Use of Wills & Trusts
One of the common ways to pass property at death is by use of a will. One who dies with a will dies testate, while a person who dies without a will dies intestate. With a properly drafted will, you may designate your executor, who is named in the will to take charge of the estate and to distribute assets in accordance with its provisions, to distribute property to those who are unrelated to you, to charities, or to your heirs in different proportions than the state may devise for those who die intestate. Upon death, the executor must apply to the surrogate's or probate court in the county of the decedent's death for official appointment as executor. The commission that the executor receives is called letters testamentary.
A trust is also a very popular way to dispose of one's assets. Although there are many different kinds of trusts, the two that are the most popular are the living trust and the so-called Medicaid trust. The living trust takes effect during the creator's lifetime and is almost always controlled by the creator as trustee and beneficiary. All of the creator's assets are owned by the trust, and upon the creator/beneficiary's death, the assets are distributed to those named in the trust agreement just as they are by a will. Medicaid trusts can protect assets of the creator from having to be used to pay nursing home expenses. Many prefer a trust to a will for privacy reasons or in cases where a will would be likely to be challenged.
We also offer parents and interested relatives of disabled individuals advice on the use of supplemental needs trusts, also known as special needs trusts. Assets placed in this type of trust, whether from an inheritance or lawsuit proceeds, can preserve the disabled beneficiary’s right to Medicaid and other entitlement programs while still providing access to trust assets for some limited purposes.
Our estate planning attorneys are experienced in the areas of trust and will drafting and would be pleased to advise which is the best for your estate plan.