When the subject of estate planning comes up, most people mention the will, also known as a “last will and testament.” Unfortunately, most people do not know about the numerous drawbacks of wills.
Wills are court documents used in a probate proceeding if you die with assets in your name alone. “Probate” means to prove the will is valid. Probate proceedings tend to be costly, time consuming, and may lead to litigation called “will contests” among family members squabbling over the inheritance.
Living trusts, on the other hand, are legal entities that own assets. Trusts avoid both probate and the use of the will. You save time, money and avoid will contests. For assets not in a trust, you may add beneficiaries or own assets jointly with the right of survivorship, which also avoid probate.
When a will is filed with the court, it is a public record for anyone to view. Trusts are private documents.
Wills do not provide disability protection. As we age, disability planning allows us to appoint people who will manage our affairs if we become incapacitated. Wills only take effect when you die to state the beneficiaries of the estate. Without disability planning, you are at risk of a guardianship proceeding when the court appoints a legal guardian. Guardianship proceedings are costly, time consuming and invasive into your privacy.
In contrast, living trusts provide disability planning because you name trustees who will manage your trust affairs if you no longer can. You avoid the guardianship proceeding, and save time and money. You also preserve and protect your privacy and autonomy.
Wills do not protect assets from nursing home costs. Nursing homes in our area cost between $12,000 and $18,000 per month. If you do not have long-term care insurance to pay for long-term care costs, you may create the Medicaid Asset Protection Trust (MAPT) that protects assets in the trust from nursing home costs after the assets have been in the trust for five years. Without proper planning, you may have to “spend down” your assets, paying for care later in life rather than saving assets for your family.
Wills do not keep assets in your bloodline. When you die and leave assets to your children through a will, the plan stops there. The children may leave their inheritance to a surviving spouse who then remarries. Your assets may go to someone you do not know. Instead, you may create Inheritance Trusts for the children, which leave any remaining inheritance to your grandchildren, and also protect the inheritance from your children’s divorces and creditors.
When you create a living trust, you also sign a “pour-over” will that revokes any previous wills. In case you die with assets in you name alone, the new will “pours over” assets going through probate into your trust.
The main drawback to remember about wills? They are only used in court. Then the list of drawbacks continues.
Bonnie Kraham is an attorney practicing elder law estate planning with Ettinger Law Firm, 75 Crystal Run Road in the Town of Wallkill. She can be reached at 845-692-8700, ext. 119, or email@example.com. This column is intended to provide general information, not legal advice.