Frequently Asked Questions

Probate is the legal process through which the court sees that, when you die, your debts are paid and your assets are distributed according to your will. If you don’t have a valid will, your assets are distributed according to state law.

Not really – it usually just postpones it. With most jointly owned assets, when one owner dies, full ownership does transfer to the surviving owner without probate. But if that owner dies without adding a new joint owner, or if both owners die at the same time, the asset must be probated before it can go to the heirs.
Watch out for other problems. When you add a co-owner, you lose some control. Your chances of being named in a lawsuit and of losing the asset to a creditor are increased and there could be gift and/or income tax problems. And since a will does not control most jointly owned assets, the end result may be that the asset ends up not going to the persons you would have wanted.
With some assets, especially real estate, all owners must sign to sell or refinance. So if a co-owner becomes incapacitated, you could find yourself with a new “co-owner” — the court — even if the ill co-owner is your spouse sometimes a conservatorship becomes necessary and the court now has to approve any decisions on the property.

A durable power of attorney lets you name someone to manage your financial affairs if you are unable to do so. However, many financial institutions won’t honor one unless it’s on their form. And, if accepted, it may work too well — giving someone a “blank check” to do whatever he/she wants with your assets. It can be very effective when used with a living trust, but risky when used alone.

When you set up a living trust, you transfer assets from your name to the name of your trust (which you control), for example, from “Bob and Sue Smith, husband and wife,” as individuals, to “Bob Smith and Sue Smith, as Trustees under the Smith Family Living Trust dated June 30, 2008.”
Legally, you no longer personally own what is transferred to your living trust (don’t panic: everything now belongs to your trust and you control the trust), so there is nothing for the courts to control when you die or become incapacitated. The concept is very simple, but it is this change of title to your assets that keeps you and your family out of the probate courts at death and avoids court supervision of your financial affairs upon incapacity.

No. Some assets, like real estate, will be transferred for you by the attorney. For other assets like stocks, CDs, and bank accounts, you will need to change the titles, but the attorney will show how it is done. Most living trusts also include jewelry, clothes, art, furniture, and other assets that do not have titles, but not detailed lists are necessary.
Also, beneficiary designations on some assets (like insurance) should be changed to your trust so the court can’t control them if a beneficiary is incapacitated or no longer living when you die. IRAs 401(k)s, etc. can be exceptions. The attorney will explain how all this works.

You may choose anybody of legal age to be your successor trustee. However, in some cases, people select a corporate trustee (bank or trust company) to act as successor trustee or co-trustee. But this is usually only done if the immediate members of your family do not have the time, ability or desire to act as your trustee. If you feel your family situation will require having a corporate trustee, discuss it with the attorney at your first meeting. Corporate trustees are generally more expensive, but they are also more experienced as investment managers and are objective and reliable.

If you become incapacitated, your successor trustee looks after your care and manages your financial affairs for as long as needed, using your assets to pay your expenses. If you recover, you automatically resume control. When you die, your successor trustee pays your debts and distributes your assets. All this is done quickly and privately, according to instructions in your trust, without court interference.

Unlike a will, a trust doesn’t have to die with you. Assets can stay in your trust, managed by the trustee you have chosen – until your beneficiaries (including minor children) reach the age(s) you want them to inherit. You may also have an ongoing trust to provide for a loved one with special needs.

Not quite. A will can contain wording to create what’s called a “testamentary trust” to save estate taxes, care for minors, etc. But, because it’s part of your will, this trust cannot go into effect until after you die and the will is probated. So it does not avoid probate and provides no protection at incapacity.

At Williamson & Gentilini, our normal work scheduling is about a week to prepare the legal documents after you make the basic decisions and have had your initial attorney consultation. However, in urgent situations and emergencies, documents can be prioritized and completed much faster.

Yes, you need a “pour-over” will that acts as a safety net if you forget to transfer an asset to your trust. When you die, the will “catches” the forgotten asset and sends it into your trust. The asset may have to go through probate first, but it can then be distributed as part of your living trust plan.

No, they’ve been used successfully for hundreds of years.

• Avoids probate at death, including multiple probates if you own property in other states
• Prevents court control of assets at incapacity
• Brings all your assets together under one plan
• Provides maximum privacy
• Quicker distribution of assets to beneficiaries
• Assets can remain in trust until you want beneficiaries to inherit
• Can reduce or eliminate estate taxes
• Inexpensive, easy to set up and maintain
• Can be changed or cancelled at any time
• Difficult to contest
• Prevents court control of minors’ inheritances
• Can protect dependents with special needs
• Prevents unintentional disinheriting and other problems of joint ownership
• Professional management with corporate trustee
• Peace of mind