By Lane V. Erickson, Idaho Estate Planning Attorney
The question, “Do I need a will if I already have a trust?” is a valid question to ask yourself any time you are thinking about or discussing your own estate planning. The reason this is a good question is because many people, and even many attorneys who only dabble in estate planning, mistakenly believe that a trust is the only document you need in your estate planning. In other words, many people believe that having a trust replaces the need for having a will. The reality is, this is not true.
Every person needs a last will and testament as a part of their basic estate planning documents. This is true even for an individual who is using a trust as the main tool in their estate plan. This statement is based on 70 years of experience the Racine law firm has in providing customized estate planning for its clients. The premier team of Idaho estate planning attorneys at the Racine law office work to provide each client with both a complete and a customized estate plan based on each client’s individual circumstances in particular needs. The last will and testament is one of the basic documents that is provided regardless of whether or not a trust is utilized.
So why do you need a last will and testament if you are in fact going to be using a trust as part of your estate planning? It’s a good question, and I’m always glad when my clients ask this question. It gives me an opportunity to explain all of the reasons they still need last will and testament. To provide an explanation in this article, we will first talk about what it will is basically used for. We will then discuss what a trust is typically used for. Finally, we will talk about the type of will you need even if you have a trust as the main tool in your estate planning.
What a Will is forWhen it comes to estate planning, almost everyone is familiar with a last will and testament even if they don’t know all of the things that this document can accomplish. Most people understand that a will is used to give away the money, property, and other assets of an individual after they die. The reason most people know this is because of movies and television shows which show the dramatic reading of a last will and testament after a person has died. These scenes usually involve major surprises about who a person chooses to give their estate to. The dramatic betrayal of the reading of the last will and testament is not completely accurate, nor does it show all the other things that a last will and testament can accomplish.
In addition to giving away a person’s estate, a last will and testament is also used to name a personal representative of the estate. Sometimes the name executor is used instead of personal representative, but they need the same thing. This person is the individual who is tasked with the responsibility of making sure that all of the instruction set forth in the last will and testament are carried out. Furthermore, a last will and testament is often used by couples or individuals with young children to nominate a guardian over their children. Additionally, the last will and testament could actually be the document used to create a trust that may be needed 4 family members or loved ones who are young, or who are disabled, or who may suffer from some type or kind of addiction.
Finally, a last will and testament is also used to give the individual an opportunity to provide specific details about their final wishes about such things as where they are buried, whether or not they are buried or cremated, and any other specific details they are concerned about.
What a Trust is forA trust is a document that is similar but different from a last will and testament. Depending on the circumstances, a trust could be used to accomplish many things. One of the most important things a trust is normally used for, which makes it different than a will, is to avoid the need for probate to be accomplished when a person passes away. A trust could also be used to provide specific care to a young child, or to someone with a disability, or to someone who suffers from addictions two things such as alcohol, drugs, or gambling. In these instances, a last will and testament would simply make a distribution of estate property or money directly to these individuals. However, a trust will hold these items for that individual without giving them directly to them.
In fact, one of the main benefits of using a trust is that it can continue to function on into the future for several generations if you want. This gives you the ability to have a trust last the lifetime of any one particular person or group of individuals. As an example, if you have a daughter who has a drug addiction, and you want to leave a portion of your estate to her without giving it directly to her, a trust is the best way to go. The trust can use the money to benefit your daughter without giving the money directly to her throughout her entire lifetime. In this way, the trust can benefit her without eating her addiction it anyway. A will does not work this way. Rather, a will simply requires a distribution to be made directly to the beneficiaries that you have identified. A will does not give you the ability to control distributions over the lifetime of the beneficiary.
The Type of Will You Need Even if You Have a TrustThere are many different kinds of trusts out there depending on what a person’s needs are. The purpose of this article is not to describe all of the things that a trust can accomplish. Rather, the purpose of this article is simply to help you understand why you still need a last will and testament even when you have a trust. So, what type of will do you need if you have gone to the trouble of setting up one or more trusts as part of your estate planning? At the very least you need a pour-over will.
A pour-over will is the name used to describe a will that contains basic language transferring all remaining property that you own or to which you have any title or interest, and which you have the power to distribute, to the trust that you created. Using a pour-over will allows you to continue to use the trust to as your main tool to distribute your estate after you have passed away. In other words, the only beneficiary that you name in a pour-over will is the trust that you created and hopefully that you already funded to some degree.
Some clients assure me that they will be very careful and make sure that all of their assets are transferred into their trust. When they do this, I still encourage them to have a pour-over will. Other clients tell me that they have already transferred everything they own into their trust. When they tell me this, I still encourage them to have a pour-over will. Still other clients tell me that they have no assets, but they are only setting up a trust to receive property that they will inherit after their parent, or spouse, or uncle, or whoever passes away. When they tell me this, I still encourage them to have a pour-over will. I do this, because a pour-over will is nothing more than easy to create insurance to make sure that my client’s plan of distribution set forth in their carefully crafted trust is actually what happens. It takes very little time, it costs very little money, and the benefits outweigh any inconvenience, or excuse, or rationale, that any client could ever come up with.
Enlist an Idaho Estate Planning Attorney to Help YouOur team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.