This month marks five years of writing this elder law estate planning column, and the most enduring and misunderstood concept I still hear about from readers and clients concerns what a will does and doesn’t do.
But my will says where my assets go …,” is a common refrain. Many people think a will is the most important elder law estate planning document. They think wills are airtight and avoid problems and complications when you die. Such misconceptions may be clarified by explaining the difference between wills and trusts.
If you die with assets in your name alone, those assets must go through a court proceeding called “probate,” where the will is submitted to court for verification. Wills do not avoid probate. Certain family members, sometimes even if they are not named heirs, must be given notice of the probate, and must consent to the probate and have the right to contest the will. The will is a public document.
If you create a trust while you’re alive, known as “living trust,” you transfer certain assets to the trust. When you die, the assets in the trust do not go to probate. Instead, they may be distributed immediately to the named beneficiaries. Trusts are private documents that avoid probate, save on settlement costs when you die, allow assets to pass smoothly to beneficiaries, and avoid will contests because other family members are not necessary parties.
Another disadvantage of wills is they provide no disability planning. With our ever-increasing life span, it is critical, and probably more important than planning for death, to name people who will make medical, legal and financial decisions for you if you ever become incapacitated. Documents such as powers of attorney, health care proxies, living wills, and trusts are part of disability planning.
In disability planning you use a trust to name people you choose to make decisions for you if you’re incapacitated, avoiding a guardianship proceeding where a judge decides who, perhaps a stranger to you, controls your life. Guardianship proceedings last a long time, are expensive and are invasive into your privacy. Guardianships may supplant a power of attorney and health care proxy but cannot supplant a trustee of a trust.
Disability planning also saves assets from nursing home costs. If you don’t have adequate long-term care insurance, the next best plan is the Medicaid Asset Protection Trust (MAPT) that protects trust assets from nursing home costs after a five year “look back” period has expired.
Most of us desire to control our own futures, minimize or eliminate government interference in the event of death or disability, minimize taxation, protect assets from nursing home costs, and pass assets to loved ones with the least amount of cost and confusion – these elder law estate planning goals remain constant.
And if you remember nothing else, please remember this simple equation – wills equal probate.
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