June 20, 2024
Dean Godfrey

Wills vs. Trusts: Dean Godfrey on Choosing the Right Tool for Your Estate Planning

Estate planning is a crucial aspect of financial planning that involves preparing legal documents to manage your assets in the event of one’s death or incapacitation. Dean Godfrey explains that wills and trusts are two fundamental legal instruments used in estate planning to ensure that your assets are distributed according to your wishes and that your loved ones are taken care of.

Dean Godfrey explains that a will is a legal document that outlines your wishes regarding the distribution of your assets after your death. It appoints an executor to manage your estate, pays any outstanding debts or taxes, and distributes the remaining assets to your beneficiaries according to your wishes. A will is a suitable option for people with straightforward estates and is usually less expensive to create than a trust.

On the other hand, a trust is a legal agreement between you, the grantor, and a trustee, who manages the assets on behalf of your beneficiaries. A trust offers more flexibility than a will, as you can specify how and when your assets should be distributed. Trusts are ideal for those with complex estates, minor children, or beneficiaries with special needs. Trusts can also help you minimize taxes, avoid probate, and maintain privacy.

Dean Godfrey on Understanding Wills: The Basics

A will, frequently referred to as a “last will and testament,” is a foundational legal document in estate planning that represents one of the simplest, yet most powerful tools at your disposal for ensuring that your estate is managed according to your desires.

Dean Godfrey on The Core Elements of a Will

Asset Distribution: At its core, a will provides clear instructions on how your property, finances, and personal belongings should be allocated upon your death. This can include real estate, bank accounts, securities, jewelry, and other personal items. You can specify exact items or percentages of your estate to go to family members, friends, or charitable organizations.

Beneficiary Designations: A key feature of a will is the ability to name beneficiaries. Beneficiaries are individuals or entities designated to receive specific assets. You have the freedom to divide your estate among multiple beneficiaries in any way you see fit.

Guardianship Appointments: For those with minor children, a will is a vital tool for appointing a guardian. In the event of your and the other parent’s death, a guardian will be responsible for your children’s upbringing. Without a will, the court must decide who takes on this crucial role.

Executor Selection: A will allows you to appoint an executor, a trusted individual responsible for carrying out the terms of your will. The executor handles tasks such as paying off debts, managing estate taxes, and ensuring that your assets are distributed as specified.

Funeral Arrangements: Though not mandatory, you can include your preferences for funeral arrangements and how you wish for your remains to be handled. This can provide guidance and ease the burden on your loved ones during a difficult time.

Dean Godfrey on Legal Requirements

To be legally valid, a will must meet specific criteria, which can vary by jurisdiction. Common requirements include:

Legal Age and Mental Capacity: Typically, you must be at least 18 years old and of sound mind, meaning you understand the nature and consequences of your actions.

Voluntary and Deliberate Creation: The will must be created and signed willingly, without coercion or undue influence.

Witnesses: Most states require the will to be signed in the presence of witnesses, who also sign the document, affirming they witnessed your signature and mental state.

Dean Godfrey on Updating Your Will

It’s essential to review and possibly update your will periodically, especially after significant life events like marriage, divorce, birth of a child, or acquisition of substantial assets. Changes in your life circumstances might necessitate revisions to ensure your will reflects your current wishes and situation.

Dean Godfrey on The Probate Process

When a will is used, your estate typically goes through probate — a legal process where the court oversees the distribution of your assets. Probate can be time-consuming and public, which is a significant consideration for many when planning their estate. Additionally, certain assets like life insurance policies and retirement accounts, which have designated beneficiaries, are not governed by your will.

Dean Godfrey
Dean Godfrey on Understanding Trusts: The Basics

A trust is a sophisticated legal entity in estate planning, offering a higher degree of control and flexibility over how your assets are managed and distributed. At its core, a trust establishes a fiduciary relationship, where you (the grantor) transfer assets into the trust, appointing a trustee to manage these assets for the benefit of your chosen beneficiaries.

Key Components of a Trust

Grantor: The individual who creates the trust and transfers assets into it.

Trustee: The person or institution appointed to manage the trust assets. The trustee has a fiduciary duty to manage these assets responsibly and in the best interest of the beneficiaries.

Beneficiaries: Individuals or entities designated to benefit from the trust. They may receive income generated from the trust assets or be granted the assets themselves, according to the terms set by the grantor.

Trust Assets: These can include a wide range of properties, such as real estate, investments, cash, and personal belongings.

Trust Agreement: This document outlines the terms and conditions under which the trust operates, including how assets should be managed and distributed.

Dean Godfrey on Types of Trusts

Trusts are generally classified into two main types: revocable and irrevocable.

Revocable Trusts (Living Trusts): These are flexible and can be altered or dissolved by the grantor at any time during their lifetime. They become irrevocable upon the grantor’s death. Revocable trusts are often used to avoid probate, as assets within these trusts are directly transferred to beneficiaries, bypassing the often lengthy and public probate process.

Irrevocable Trusts: Once established, these trusts cannot be easily changed or revoked. They offer benefits in terms of estate tax reduction, asset protection, and Medicaid planning. Since the assets are effectively removed from the grantor’s estate, they are not subject to estate taxes and are generally protected from legal judgments against the grantor.

Dean Godfrey on the Advantages of a Trust

Avoiding Probate: Trusts can bypass the probate process, allowing for a quicker, private transfer of assets.

Control Over Asset Distribution: Trusts provide precise control over when and how assets are distributed to beneficiaries. For example, you can stipulate that beneficiaries receive assets at a certain age or upon meeting specific conditions.

Privacy: Unlike wills, trusts are not public documents. The details of a trust and its assets remain private, providing discretion for the beneficiaries.

Protection Against Legal Challenges: Trusts often provide stronger protection against legal disputes and challenges than wills.

Estate Tax Benefits: Particularly with irrevocable trusts, there can be significant estate tax advantages, as the assets in the trust may not be considered part of the taxable estate.

Dean Godfrey on Considerations When Setting Up a Trust

Choosing the Right Type of Trust: Based on your objectives — whether it’s avoiding probate, protecting assets, reducing taxes, or controlling asset distribution — the type of trust you choose will matter.

Selecting Trustees: The choice of trustee is also critical, as this individual or institution will have significant control over your assets. It’s important to choose someone who is trustworthy, competent, and capable of understanding the responsibilities involved.

Ongoing Management: Trusts, especially irrevocable ones, can be complex to manage and may require ongoing administration, which can include accounting, investment management, and tax reporting.

Legal and Professional Guidance: Due to the legal complexities surrounding trusts, it’s best to seek professional legal and financial advice when creating a trust.

Dean Godfrey on Comparing Wills and Trusts

While both wills and trusts are effective tools for estate planning, they serve different needs and situations. Here’s a comparison to help you understand their distinct roles:

1. Privacy and Probate

  • Wills: Subject to probate, which is a public process. This means that your assets and whom you’ve left them to become publicly recorded.
  • Trusts: Allow for privacy as they bypass the probate process. The details of your estate remain private.

2. Control Over Asset Distribution

  • Wills: Provide a one-time distribution of assets upon death.
  • Trusts: Allow for more complex, customized plans, including staggered distributions or conditions that must be met for beneficiaries to inherit.

3. Flexibility and Control

  • Wills: Can be changed or updated as long as you are alive and mentally capable.
  • Trusts: Revocable trusts offer similar flexibility, but irrevocable trusts do not.

4. Protection From Legal Challenges

  • Wills: More susceptible to challenges and disputes.
  • Trusts: Generally offer stronger protection from legal challenges.

5. Costs and Complexity

  • Wills: Typically simpler and less expensive to create.
  • Trusts: More complex and can be more costly to set up and maintain.

Situations Best Suited for Wills

  • Simplicity: If your estate is straightforward and you’re comfortable with it going through probate.
  • Minor Children: To appoint guardians for your minor children.
  • Limited Assets: If you have a smaller estate and want a simple and easy way to pass it on.

Situations Best Suited for Trusts

  • Privacy Concerns: If you prefer to keep your estate matters private.
  • Large or Complex Estates: Especially useful for avoiding probate and minimizing estate taxes.
  • Specific Distribution Plans: If you have detailed wishes on how and when your assets should be distributed.
  • Asset Protection: To protect your estate from creditors or legal challenges.

Using Both a Will and a Trust

For some, a combination of both a will and a trust may be the best approach. For instance, you might use a trust for the bulk of your assets, but also have a will to name guardians for your children and to cover any assets not included in the trust.

The Role of an Estate Planning Attorney Like Dean Godfrey

Estate planning is a crucial task that requires the careful consideration of various factors. The process involves creating a plan for the distribution of your assets and property after your death. However, the laws surrounding estate planning can be complex, varying from state to state. Therefore, it is highly recommended that you consult with an estate planning attorney to help you navigate the nuances of your state’s laws. An experienced attorney can guide you through the process of creating a comprehensive estate plan that meets your unique needs and wishes. They can also help you identify potential issues that could arise and advise you on how to avoid them. With the help of an estate planning attorney, you can ensure that your assets are distributed according to your wishes and that your loved ones are taken care of after your passing.

Deciding whether to choose a will, a trust, or both depends on several factors. These factors may include the complexity and size of your estate, your preferences regarding privacy, and your specific wishes for your loved ones and assets. By understanding the unique features and benefits of each option, you can make informed decisions that ensure the preservation of your legacy and that your assets are passed on according to your wishes. Although estate planning can seem overwhelming, with the right tools and advice, it’s a powerful way to protect your assets and provide for your loved ones after you pass away.