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Deland on Estates and Elder Law

Friday, April 4, 2008

Why not Just a Simple Will?

This is a conversation I often have when people find out that I create living trusts for my clients: Why a trust? They ask me. It seems so complicated. Why not just a simple will? What they do not realize is that a will is not simple. 
 
Most lawyers believe themselves competent to draft a “simple will.” But even the simplest will is quite complicated. Clients often come to me with wills they want to “update” or change. Looking at these documents, I have become convinced that many lawyers who think they know how to draft a will actually know very little about it. 
 
A will is interpreted by the court in the context of certain rules. For instance, every executor must post a bond. But, if the will is properly drafted, this can be a mere statement by the executor that he or she promises to faithfully execute the will.   Otherwise, the executor may need to get sureties – other people who agree to back up that promise with their own money, or even a corporate surety – essentially an insurance policy. It is obviously silly for a surviving spouse who is going to distribute the assets to herself to have to post a bond with sureties. But the rules are the rules. If the will does not say otherwise, sureties are required.
 
A trust, by contrast, is a simple document. It is a contract. A client signs a living trust twice, as trustmaker – the person providing the assets, and as trustee – the person who will hold the assets. It is essentially a contract between you and yourself.  That may seem a little odd,  but it is governed by the same law that governs any contract. 
 
A will must be signed with elaborate formalities: two witnesses and a notary, all in the same room at the same time. It must be “published” – the signer announcing out loud “this is my will.” The witnesses must swear that, as far as they can tell, the signer is of sound mind, over 18 years of age, and under no undue influence.   A trust needs no such formalities. It need not even be notarized. 
 
A will does nothing until it is probated. Probate is a lawsuit. A petitioner, usually the person named in the will as “executor” - the person who is to make the signer’s wishes a reality, begs the court to approve the will and appoint the named executor. All the heirs-at-law must be given notice, including, perhaps, an estranged (but not-yet divorced) spouse and all children (unless they have been adopted by someone else). If there is no spouse and no children in the picture, “heirs” may include remote relatives the person had no contact with during life.
 
By contrast, a trust is effective as soon as it is signed. The trusts we draft for our clients provide that, if the client becomes disabled (due to Alzheimer’s disease, for instance), someone else (named by the client in the trust) takes over as trustee. Nothing else changes. The client is still the beneficiary. The trustee has a duty – legally enforceable in contract law – to use the assets to take care of the beneficiary. If the client has named any other beneficiaries during his lifetime, the new trustee must take care of them, too.
 
On the client’s death, a new trustee takes over (this may be the same person who would take over at disability). That person proceeds to give the assets (which, as trustee, he or she now owns) to the people named in the trust to receive them. There is no requirement to give notice to anyone who is not a beneficiary of the trust.
 
Even if there is no contest, an executor under a will has no power until the court issues an order of appointment. This can be frustrating to a surviving spouse or child trying to make funeral arrangements or being dunned by the decedent’s creditors for money that is not available until the appointment arrives.  A trustee’s power to pay funeral costs or creditors' claims can be set out in the trust, so that there is no need to wait for a court order.
 
So, it is really the trust that is simple. It is a simpler legal document, governed by simpler laws. Acting under it is much simpler, because there is no need to get a court order.  Moreover, since a trust is effective as soon as it is signed, it can do things, such as providing for the client who becomes disabled, that a will simply cannot do.
 



Jennifer A. Deland, Counselor-at-Law advises clients throughout the Metrowest area, including Holliston, Hopkinton, Milford, Medway, Medfield, Ashland, Framingham, Natick, Sherborn, Dover, Southborough, Sudbury and Westborough.

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