1. What is the difference between a will and a revocable living trust?
A will is an estate planning document that indicates your wishes and desires upon your death. When you die, your executor may probate your will to open your estate. A perk to having a will is that there is less work and costs on the front-end.
A revocable living trust is an estate planning document that manages your assets. You do not have to die for your revocable living trust to be useful. You must fund your trust by titling assets in the name of the trust. Funding your trust is essential to avoiding probate. A perk to having a revocable living trust is that by doing more work on the front-end, the probate process can be avoided upon your death.
2. What is the probate?
Probate is the legal process that must occur when a person dies, and an estate must be opened on decedent’s behalf. Probate must occur in the probate court in the county where the decedent was a resident.
3. Can I avoid probate or make the process simple?
This depends on how your assets are titled. To avoid probate or simplify the process, you can ensure that your accounts have beneficiaries or pay on death designations. Ensuring this allows your assets to automatically transfer and said accounts would not be part of your probate estate.
If you have real property, titling such property with another person as “joint tenants with rights of survivorship” will allow it to fully transfer to the other joint tenant upon your death.
4. What is an executor?
An executor is the personal representative you list in your will who has authority to act on behalf of the estate. For example, the executor will ensure that the will is probated, make distributions to beneficiaries, and pay creditor claims. The executor will also be held accountable by the court regarding the estate.
5. Who do people generally choose as their executor?
The executor should be responsible, organized, and trustworthy. Additionally, when choosing someone to serve in this role, consider whether being the executor would be too much of an emotional, mental, and/or financial strain.
6. What should my executor do once I die?
Once you die, your executor should determine whether he or she should probate your will. If all your assets transferred via beneficiary or pay on death designations, then probate will not be necessary. Your executor should contact Bequest Law or another estate planning firm to make this determination.
7. What is a testamentary trust?
A testamentary trust is a trust within your will that is only effective upon your death. If a beneficiary inherits through a testamentary trust, he or she will not inherit outright. Instead, you may decide to distribute your assets at a certain age or ages. You also choose a testamentary trustee who will distribute and manage the assets from the trust.
8. Should I share my will with someone?
If you don’t want people to know the contents of your will until after your death—that is fine. It is also fine if you want to provide your children or beneficiaries with copies of the will. Sharing your will is completely optional.
9. Do I need to file my will with the court?
No, you do not have to file your will with the court.
10. When should I update my will and other documents?
You should update your will when you have major life changes or when you want to change the representatives or beneficiaries within your will. It is a good practice to allow an estate planning attorney to review your estate planning documents every seven years.
11. What if I move out of state?
If you move out of state, you should have an estate planning attorney within that state review your will to ensure that your document is legally valid.
12. What if the address of an agent who is listed in my estate plan changes?
If an agent has an address change, this is not a significant reason to update your estate plan. Your agent can still be contacted, for example by phone or email, if necessary.
13. Where should I keep my will?
You can keep your will in a fireproof safe. If you would like, you can inform your executor exactly where to find the original copy of your will in the event of your death.
We do not recommend placing your will in a safe deposit box because once you die, only a co-signer would be able to access its contents. If there is no co-signor, your executor would have to obtain a court order to access the safe deposit box.
14. What if I need to make a change or amendment my will?
A change or amendment to a will is known as a codicil. However, if you want to make substantial changes to your will, it may be better to execute an entirely new will. Please reach out to Bequest to determine the best course of action.
15. Should I inform someone that I listed them as an executor, guardian, or testamentary trustee?
It is a great idea to have a conversation with someone before you list them as having a role within your estate plan. You may incorrectly assume this person would agree to the role and subsequently have to amend your estate plan if they do not want the role.
16. Can I name my minor child as an executor, guardian, or testamentary trustee?
You should not name a minor as an executor, guardian, or testamentary trustee. The person you name should be able to serve in their role if you were to die tomorrow. Additionally, such roles are too much of a strain for a minor who is already navigating grief.
17. Can I just leave everything to one person and trust them to divide things?
The purpose of an estate plan is to ensure that your assets are distributed according to you. While it can be hard to imagine, after your death your loved ones may behave in ways that you never expected. It is best that you make the division of your assets to avoid turmoil.
18. Can I name the same person as executor, guardian, or testamentary trustee?
Yes. Naming the same person for these roles would allow him or her to smoothly carry out their duties. For example, if your guardian and testamentary trustee are the same person, your guardian would not have to request funds from the testamentary trustee. The guardian would automatically be able to access those funds.
19. What if I buy property down the road or start a business?
If you buy property in the future, that property would be contemplated by the will based upon the will’s language. However, if you buy multiple properties, you should contact Bequest to determine whether a will is still the best estate plan for you.
If you start a business in the future, you should also reach out to our firm to determine if your will already covers your business interest and whether a will is still the best estate plan for you.
To set up a free 15 minute consultation to discuss your current estate plan or to start the estate planning process, please call (404) 500-7531, email hello@bequest.law, or go to our website bequest.law to fill out the new client inquiry form.