Wills & Trusts: Frequently Asked Questions
Common Questions About Wills & Trusts
Few people are familiar with the process of setting up a will or a trust. If you are one of the many who have questions about these matters, you are not alone! At the Law Office of Michael J. Brescia, P.C., we are here to help. Our Long Island estate planning lawyer has been in practice for over a decade and focuses extensively on wills, trusts, and other
estate planning matters. Read below for short answers to some of the most common questions about wills and trusts. We then encourage you to
call us at (631) 386-8767 to receive detailed answers from an attorney who knows!
What is a will?
A will is a statement of your desires regarding how you want your estate to be handled and your minor children (and other dependents) to be cared for after you pass away. In most cases, a will is a written document that is signed in the presence of witnesses in order to ensure that it is holds up in court.
What is the difference between a last will and a living will?
A last will – also known as a "testamentary will" or a "last will and testament" – expresses your desire regarding the handle of your estate and the care of your dependents after you are gone. Living wills dictate your desire regarding medical care in the event that you become incapacitated, such as resuscitation and life support.
Do I need a will?
Everyone can benefit from having a will. Even if you don't think that you have "a lot" or "enough" assets or property to leave behind, having a will makes the probate process much faster and simpler for your loved ones after you're gone. Your family won't have to guess what you would have wanted; they will know your exact will and so will probate court. Otherwise, the distribution of your estate – however large or small it may be – could take a long time as your family and dependents try to work out "who gets what."
How do I get a will?
Obtaining a last will is relatively simple. You make a list of everything you own – including your financial assets, contents of safety deposit boxes, and the like – and explain in detail how you want your property to be handled / distributed after you pass away. There are many ways to write a will, but some formats are better than others. The key is to be clear, concise, and comprehensive about your property and your desires so that your last will cannot be misunderstood.
What is a trust?
Living trusts place all or part of your estate into the legal care of a trustee, who manages and administers the trust on behalf of a third party (the beneficiary). The beneficiary can inherit the trust at a time of your choosing. This can be when the beneficiary turns a certain age, a certain date in the future, or at the time of your death. Trusts allow you to protect your financial privacy and to avoid probate.
What types of living trusts are there?
There are two basic types of living trusts: revocable and irrevocable. Revocable living trusts can be changed at any time while the trustor is still living. While this makes the trust more flexible, it also results in estate taxes and less financial security. All assets in revocable trusts are considered your personal property and are not protected in case of taxes, lawsuits, etc. Irrevocable living trusts still help to avoid probate, however.
Irrevocable living trusts cannot be altered after the trust agreement is signed. Since it cannot be changed by the trustor, it is no longer considered the trustor's personal property and therefore results in reduced estate taxes and higher asset protection. Irrevocable living trusts also assist in avoiding probate.
What is Power of Attorney?
Power of attorney is a written and signed legal agreement granting one person to have legal authority over the affairs of another person. Power of Attorney documents are often obtained together with a living will or last will, giving another person the right to make decisions on behalf of the testator in the event that the testator becomes incapacitated. For example, if someone is in an accident and is incapacitated, the attorney-in-fact or agent that they named in their POA has the legal right to make decisions on the testator's behalf.
Do I need a trust?
Anyone can benefit from having a trust, but it is not necessary for everyone. If your estate is worth multiple millions of dollars, than a trust is probably a wise decision for you since a trust provides excellent asset protection, can reduce estate taxes, and helps to avoid probate. Speak with an estate planning attorney to discuss your situation and find out whether or not you need a trust.
Should I get a will or a trust?
Every person's estate is different. Some people only need a will, while others decide to draft a will and a trust. If your estate is relatively small, then you would probably do will with just a will. Larger and more complex estates can be protected by having both a will and a trust. But again, every case is unique, so consult an estate planning attorney to ensure that you make the best decision for your case.
Do I need a lawyer?
If your estate is large or complex, then you definitely need a lawyer to help you draft a solid last will, living will, or living trust. Individuals with smaller estates can technically draft their own will and sign it in the presence of witnesses; however, having a knowledgeable attorney by your side to help you can give you peace of mind, since you will know that your will and/or trust is clear and comprehensive. In most cases, it is a good idea to hire an estate planning lawyer.
Contact an Estate Planning Attorney in Long Island
The Law Office of Michael J. Brescia, P.C. has over a decade of experience in estate planning, estate and trust administration, and estate and trust litigation. Our Long Island estate planning lawyer is highly experienced with wills and trusts and can guide you step by step through the process.