Wills and Trusts - An Overview

If you have questions about wills, trusts, probate or other estate planning matters, contact our firm to speak with a knowledgeable estate planning attorney.

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Wills and Trusts - An Overview

A will is a written communication by which a person directs how his or her estate is to be distributed upon death. A trust is the legal right to the beneficial enjoyment of property to which another person holds the legal title. Wills and trusts are commonly used estate planning tools.

The advice and assistance of an experienced wills and trusts attorney can be invaluable when building an estate plan. Contact Law Offices of Nicholas P. Barone in White Plains, NY, today to schedule a consultation with an attorney to discuss creating an estate plan that will truly carry out your wishes.

Planning for the future

Estate planning allows you to determine how you would like your assets and property distributed after your death. There are various types of wills and trusts available to provide necessary guidance for many significant life decisions such as:

  • Who should be named as a guardian to care for your minor children?
  • Who will manage your estate and distribute your assets?
  • • Who will make medical and financial decisions on your behalf in the event you become unable to make those decisions for yourself?

Creating a will: the first step

The cornerstone document of any estate plan is the will. A will allows you to do things such as:

  • Select the person responsible for carrying out your final wishes
  • Name a guardian to care for your minor children and manage their property
  • Direct which property will go to which beneficiaries
  • Determine who should receive the remainder (residue) of your estate

Each state has its own set of requirements that must be satisfied to create a legally valid will. However, there are some common elements in the various state laws: At the time of drafting, a person must have the mental capacity to create a will, that is the ability to understand what property he or she owned, who the property was being left to and that by signing the will, the testator was creating a binding document to dispose of his or her property at death; additionally, the will must be in writing and signed by the person for whom the will has been created and by at least two witnesses.

Some states recognize oral wills in certain circumstances, such as in cases of imminent death. About half of the states recognize holographic wills, which are wills in a person's own handwriting and signed only by him or her.

Choosing a trust

A trust is a legal property interest held by one person for the benefit of another. The person who holds the legal property interest is the trustee. The person for whom the property is held is the beneficiary. The person establishing the trust is called the grantor. A trust can be revocable or irrevocable.

  • Revocable trusts may be changed or terminated by the grantor at any time and for any reason
  • Irrevocable trusts, once established, cannot be terminated or altered by the grantor for any reason

Trusts also may be living, or inter vivos, trusts or testamentary trusts. Living trusts are made while the grantor is still alive. Testamentary trusts are created by the grantor's will and do not come into effect until his or her death.

Trusts authorize trustees to direct or control property or other legal rights that are held by the trusts. A trustee has a legal duty to make decisions regarding the trust property that are in the best interests of the beneficiaries. Trustees can be held liable for any misuse or mismanagement of trust assets.

There are many different types of trusts that can be used in your estate plan, including:

  • Life insurance trusts
  • Self-declaration trusts
  • Support trusts
  • Charitable trusts
  • Spendthrift trusts
  • Honorary trusts

An experienced trusts and estates attorney can review the different types of trusts with you and help you select the ones that will best fit your estate's needs.

Other estate planning tools

In addition to trusts and wills, other estate planning instruments you may use to execute your wishes include:

  • Powers of attorney allow you to appoint another person to make decisions on your behalf. Powers of attorney are normally used to designate someone to make financial and legal decisions for you, but you can determine the type and scope of the power in the document.
  • Health care directives, also known as medical powers of attorney, allow you to appoint a health care agent who will have the legal authority to make health care decisions for you if you become incapacitated and cannot make the decisions for yourself.
  • Living wills allow you to specify the type and level of medical treatment you do or do not wish to receive if you are too ill or injured to direct your own care.

Speak to an estate planning lawyer

It is best to begin your estate plan sooner rather than later. It is important to remember that wills, trusts and other estate planning documents can be modified one or more times to reflect changes in your life. To begin drafting your estate plan, contact Law Offices of Nicholas P. Barone in White Plains, NY, to speak with an experienced estate planning attorney.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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