A Last Will and Testament, or simply a Will, is a document memorializing an individual’s final wishes regarding the distribution of assets upon his or her death. If the individual has minor children, the Will can also be used to appoint a guardian of the minor children upon his or her death. The individual signing the Will is known as the Testator. The Testator appoints a person to administer his or her estate according to the Testator’s wishes, and that person is known as the Executor. The Will does not become legally effective and binding until the time when the Testator dies and the Will is admitted to the probate court. Once the Will is admitted to probate, the probate court will issue what is known as “Letters Testamentary” to the Executor, which allows the Executor to administer the Testator’s estate and distribute the property as the Will provides.
A Living Trust, also called a Revocable Trust, is an estate planning tool that directs how you want your assets managed during your lifetime and distributed upon your death. The individual signing the Living Trust is known as the “Trustor” or “Grantor”. In the Living Trust, the Trustor appoints a “Trustee” to manage his or her property, and typically the Trustor and Trustee are the same person. A Successor Trustee is also named to distribute the Trustor’s property upon the Trustor’s death. Unlike a Will, the Living Trust is effective during the Trustor’s lifetime and, if done properly, can avoid the probate process altogether. A Living, or Revocable Trust, as the name implies, can be altered, amended, or revoked by the Trustor during the Trustor’s lifetime, giving the Trustor full control of his or her assets while living. The Living Trust can also be a vehicle for managing your property, for your benefit, if you become incapacitated; thereby avoiding the necessity of a conservatorship over your person and property. For a Testator with minor children, an ancillary document known as a “Pour-over Will” can be used with the Trust to appoint a guardian of the minor children upon the Testator’s incapacity or death.
The choice of a Will or Living Trust is a personal one that should be made only after careful consideration with an estate planning attorney. The contents of this post do not constitute legal advice.
