Many people are unsure as to whether a Last Will and Testament (“Will”) is sufficient to accomplish their estate planning goals and objectives or if a Revocable Trust (“Trust”) is the more pertinent planning technique. Adding to the uncertainty is the plethora of propaganda disseminated by attorneys who promote trusts. Both serve a purpose but are not always applicable.
A Will must be probated upon the death of an individual unless all of the assets of the decedent pass by operation of law (e.g. joint accounts or accounts having beneficiaries). The word probate is derived from the Latin word “probo” which means “to examine, test or prove”. So the probate process requires that certain paperwork be filed with the Surrogate’s Court in order to prove the validity of a Will resulting in the appointment of an executor. It is this process that some attorneys advise you to avoid, yet it is my opinion that the probate process in New York is not overly burdensome. Depending on the dynamics of an estate, a Will can be probated in a short period of time.
A Trust does not need to be probated. However, it carries an administrative burden during your lifetime. In order for the Trust to work, all of your assets must be transferred to the Trust during your lifetime such as your bank accounts, house, etc. I find in my practice that clients rarely see to it that all of their assets are transferred to the Trust and remain in the Trust. In such instances, a probate is required for the assets that are not in the Trust which defeats the purpose of the Trust. For this reason alone, I often favor Wills over Trusts.
There are situations where a Trust is necessary such as where there is property in more than one state or the heirs of the decedent’s estate are unknown or distant. In other instances, we use Trusts to protect the assets of a person receiving Medicaid benefits.
The New York elder law attorneys at Plan Today for Tomorrow are happy to provide you with the correct information regarding this, as well as, providing you insight to various other techniques to help protect your home and other assets. Please contact us or call us at (914) 925-1010 or (914) 245-2440 to begin protecting your assets.
