A Quick Primer: Wills & Living Trusts
by Gale Allison, Counselor and Attorney-at-Law
Think a will sitting in the drawer means your affairs are in order? Think again. The only way a will is given any legal effect is when it is taken to court. A will is essentially a letter to a probate court judge. The will’s personal representative (also known as the executor or fiduciary) has no power to settle the estate until the judge has accepted the will in the court probate process. Furthermore, none of the words in a will can be given any legal effect, until a judge issues a court order.
A will may not control all of a person’s property, even if the will says it does. It all depends on how the property is titled or designated. The expression “possession is nine-tenths of the law,” is never more true than with the use of a will – possession being the legal title or other designation of the property.
Generally, a will only controls two types of property: the property that is titled solely in the name of the deceased person and property that is made payable to the deceased person’s estate.
Property that is held jointly with rights of survivorship or that is payable upon death to other than the deceased person’s estate are two common forms of ownership that are generally not controlled by a will, even if the will refers to that property by name.
A properly drawn will can disinherit absolutely anyone except the deceased’s spouse, unless a well-drawn prenuptial contract specifically allows for the disinheritance of the surviving spouse. Without a prenuptial contract, if a will says the surviving spouse will inherit nothing, the spouse can still claim a share of the estate.
Passing property through the use of a will is rarely the least expensive way to do it, and is the most public and time consuming way to pass property to loved ones.
At death, a living trust, also known as a revocable trust, works exactly as a will does, except the estate settlement process is private, quicker, and is usually cheaper than the use of a will. Similar to a will, a living trust can be changed whenever the mood strikes.
When a living trust is used, no court action is required to settle the estate – the trust only controls property that is titled in the name of the trust or made payable to it.
There are three common forms of property ownership that are not controlled by the language of a living trust, even if the trust refers to that property by name. These forms are property titled in the deceased’s name, property that is jointly held with rights of survivorship with another, or property made payable upon death to other than a living trust.
In short, while a will is useful in many cases, a trust can offer more protection and can make it easier on your heirs.
Gale Allison has more than 25 years’ experience in estate and probate law. Learn more at www.TheAllisonFirm.com.
Having a will or trust is an important part of getting your ducks in a row. Because LIFE Senior Services understands the importance of planning ahead, we offer complimentary estate planning services. These no-cost planning services can help you understand the variety of options available to help you meet your personal, family, and financial goals; or can offer a free second opinion of your current plans. Call Suzy Sharp at (918) 664-9000 for more information or to schedule a time to visit. Rest assured; no one is going to try to sell you anything.
