Will and Trust Planning Attorney | Personalized Estate Guidance
Understanding Your Will and Trust Planning Options and Protecting You and Your Family’s Future
It goes without say that will and trust planning for death can be very difficult. Simply bringing up the subject of death can trigger feelings of denial and avoidance.
That being said, a carefully guided and effective estate plan, as expressed through legal documents such as wills and trusts, can secure your legacy and save your family a great deal of difficulty in the long-run.
At Altman & Associates, our attorneys have the knowledge and experience to craft individual solutions for you and your family.
Will vs Trust
The Difference Between a Will and a Trust
Even if you have not had exposure to them, most people have heard about wills and trusts. A will and a trust might look similar and have similar terms, however, they are functionally very different documents which, ideally, can work together for your benefit:
In simple terms, a will is a written document—signed and witnessed—that indicates how your property will be distributed at the time of your death. It is revocable and subject to amendment at any time during your lifetime. It also allows you to appoint a guardian for your minor children.
A will, more technically defined, is a “writing” in which a grantor (creator of the will) expresses some terms which should take effect at the time of his or her death. Under Maryland Law, a valid will must be signed by the grantor (or someone acting in the grantor’s presence and on his or her behalf), and must be attested to and signed by two or more credible witnesses.
A key aspect of a will is that it really does not take effect until the grantor dies. A will creates an estate which distributes property known as probate assets, and appoints a Personal Representative to do so. The Personal Representative then goes through Probate Court to ensure that the probate assets are distributed consistent with the terms of the Will.
Absent a Will, probate assets are distributed by a Probate Court through “intestate succession” – a series of laws which distributes these assets to your family in a particular order. Also, a Will can contain critical information regarding your health decisions, and care of your children or pets after your death.
In simple terms, a living trust provides lifetime and after-death property management. If you are serving as your own trustee, the trust instrument will provide for a successor upon your death or incapacity. Court intervention is not required.
Livings trusts also are used to manage property. If a person is disabled by accident or illness, the successor trustee can manage the trust property. As a result, the expense, publicity, and inconvenience of court-supervised distribution of your estate can be avoided.
A living trust, more technically defined, is a document and a legal designation created during the life of the Settlor (creator) of the trust. The trust is a direct reflection of the grantor(s). Like a will, a trust will indicate the wishes of the Settlor(s). But critically, the provisions of a trust can be effective as soon as it is executed, not necessarily upon the death of the Settlor(s). In fact, most trusts can be used if the Settlor becomes incapacitated.
In addition, couples and families can create trusts. Therefore, a Settlor can name his or herself the initial Trustee (decision-maker for the trust) and begin placing property and assets in the name of the trust. Property and assets in the name of the trust are not probate assets and do not have to go through Probate Court upon the death of the Settlor.
Instead, a successor Trustee is designated in the Trust. This successor Trustee is appointed upon the death or serious disability of the initial Trustee and/or Settlor in order to provide for their care or administer their estate. In all cases, the Trustee must follow the terms of the trust document, including giving distributions to trust Beneficiaries.
Wills Are Essential Estate Planning Documents
The first and most essential step in an estate plan is drafting a will. If there is no written, verified expression of your wishes in the event of your death, then state law will decide what becomes of your legacy. Our team believes that every individual’s story and circumstances are unique. You have concerns and preferences which should be protected after you pass away. Here is small sampling of the myriad of subjects your will can address:
- The future care of your minor or disabled child.
- Distributions of your monetary assets and personal property.
- Transfers of title to real property, such as your home.
- Limitations on the transfer of assets based upon family concerns.
- Gifts to beloved institutions or charities.
- Funeral services and/or burial instructions.
Wills Must Be Updated
There are an innumerable amount of good reasons to have a will. Even if you currently have a will, many common life events will require you to amend your current will. As our founding attorney, Gary Altman, often says, “Having an outdated will can be as risky as having no will at all.” Here a just a few reasons to consider having your will amended or redrafted:
- You recently were married or went through a divorce.
- You are now widowed.
- You have a new child, or your children are no longer minors.
- You are now part of a unique or blended family.
- You have acquired a significant asset or inheritance.
- Your wishes, as expressed through your current will, have changed.
Trusts Can Facilitate a Smooth, Effective Estate Plan
Trusts allow you to protect your assets and property from going through Probate Court at the time of your death. If your assets are already in the name of your trust, then the assets need not transition ownership or title at the time or your death. Moreover, a Settlor can personalize a trust so that its impact is felt over time.
For instance, a trust can provide that real property be sold or that proceeds from income producing assets be distributed in specific ways. In short, the Settlor of a trust can guide the actions of a Trustee through the trust documents, even after the Settlor is gone.
This allows the Settlor to set up special provisions or conditions for particular trust Beneficiaries which do not stop once the probate process is over. By avoiding probate and spreading out Beneficiary distributions over time, the Beneficiaries can also benefit by paying less court fees and taxes.
Changing or Revoke Your Will or Trust
Revoking or amending a will is relatively easy and may be done for any reason at any time. Maryland law, for example, lists a number of ways to revoke a will. This includes such extreme measures as tearing or burning a will, but it is advisable to keep a copy of revoked will. In some states, a will which includes a former spouse is considered revoked once a divorce is final.
Revoking or amending a trust depends on whether the trust is revocable or irrevocable. Most trusts start out as revocable trusts so that terms may be easily amended. In most states, trusts are irrevocable once the Settlor passes away. However, an irrevocable trust can sometimes be reformed or amended depending on many factors, including trust agreement terms, length of irrevocability, identity of current and remainder beneficiaries, and governing laws.
An irrevocable trust that no longer makes practical or economic sense is a prime target for change; however, despite a trust’s shortcomings, it may be impossible to change. Sometimes, the best option may be to terminate the trust altogether and distribute what’s left to the beneficiaries.
Get Answers to Your Questions Regarding Wills and Trusts
If you have questions regarding the creation or modification of wills and/or trusts, please call us to discuss your options. We have been helping clients with wills and trusts for more than 20 years, and have the skills and compassion to help you successfully plan for the future. We have convenient office locations in Columbia, Rockville, D.C. and Northern Virginia. To schedule a consultation, call us (301) 468-3220.