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Wills, Estates and Trusts

A last will and testament is a declaration by which a person, the testator, names a person to manage his estate (an executor) and provides for the transfer of his property at death. A Will does not control all of a testator’s assets. Most jointly owned assets and those with beneficiary designations, such as life insurance and retirement accounts, are not controlled by a testator’s Will. When one dies these assets automatically go to the surviving joint owner or person named as a beneficiary.

By completing a will, a person directs how to distribute personal property, real property, money, and particular items to the intended beneficiaries. A will also allows a person to choose trusted individuals to act as their personal representatives, who will take charge of the estate, wind it up, and distribute it according to stated wishes. In the absence of a will, a person risks having their property distributed by a court-appointed stranger according to their state’s laws of intestacy or escheating (forfeiting) to the state. This may result in a longer and more expensive administration process than a will would require, and the property may wind up being distributed against the deceased’s wishes.

Other benefits of preparing a will include:

  • The ability to name a guardian for minor children to ensure they are cared for as the parent would wish. If both parents of a child or children die without a will, a court-appointed guardian takes custody of any minor children and of the parents’ estate;
  • People often use a will to express their final wishes for burial, cremation, and/or organ donation;
  • A properly written will may result in significant estate tax savings, allowing a person’s loved ones to benefit even more from their generosity; and
  • Clearly stated wishes in a will can minimize family disputes and the burden of intestate administration.

An attorney is not needed to prepare a will. Requirements vary by state, but most states require two witnesses to sign the will at the direction of the maker. Statutes commonly allow anyone 18 or older to make a will. The will maker must have testamentary capacity, meaning that he/she is of sound mind and acting under free will, understands the nature and situation of his/her property and his/her relations to those persons who would naturally inherit, and understands the nature of the actions taken. Wills are not required to be filed with the court prior to death, although some states allow a will to be filed with a probate court of recorder’s office.

Common terminology regarding wills includes:

  • Testator, who is the person who died after making a will. A female will maker is often called a testatrix;
  • Executor, who is the person named in the will responsible for administering and settling the estate. A female is often called an executrix;
  • Bequeath, which means to give by way of a will and is often used to refer to personal property;
  • Devise, which means to give by way of a will and is often used to refer to real property.
  • Residue, which is property remaining after all specific gifts have been disposed of. A will often contains a residuary clause that leaves to all property of the deceased not otherwise disposed of to a residuary beneficiary.
  • Self-proving affidavit, which is allowed by some states to be used at the time of the execution of the will to verify the valid signing of the will. It may simplify the probate process by dispensing with the need for the witnesses to be called to court to testify that the will was properly executed. The affidavit should be sworn to before a notary public.
  • Codicil, which refers to an amendment to a will or a modification of the terms of the original will. The codicil is subject to the same legal requirements as the will itself in order to be valid, and must make a reference to the will it amends.

 Types of Gifts. Gifts may be specific or general. The residuary (assets remaining after specific gifts have been made and debts paid) are distributed to the surviving spouse, descendants, or others. If the assets are insufficient to pay all general bequests, the legatees receive reduced benefits.                                                                                    

Requirements for a Valid Will — Testamentary Capacity and Intent.

The elements for a general test for capacity are basically the same as having the capacity to enter into a contract. Contractual capacity is the ability to understand that a contract is being made and to understand its general nature.  The fact that a person does not fully understand the meaning and all ramifications of a contract does not mean that the person lacks contractual capacity.

A will may be set aside if it were not in fact entered into voluntarily by the testator. If it were entered into because of undue influence or physical or economic duress, it may be set aside. Undue influence arises in a situation where a confidential type relationship exists and one party has such influence over the other party that the other party’s free will is dominated to the benefit of the influencing party.

Confidential relationships which may result in undue influence can be such things as the relation­ship of an elderly parent and an adult child, a physician and patient, an attorney and client, or any other relationship of trust and confidence in which one party exercises a control or influence over another.  Because of the possibility that a person in such a confidential relationship may dominate the will of another and take unfair advantage, if such a confidential relationship exists, the law presumes that undue influence has occurred if the dominating party obtains any benefit from a will made with the person alleged to be dominated.  The will is then voidable and may be set aside unless it can be proven that no such domination took place.

Witness Requirements. Two, and sometimes three, witnesses are required.  The number, their qualifications, and the manner in which witnessing must be done varies.  Some states [(though not the Uniform Probate Code (UPC)] prohibit interested parties from witnessing.  A witness does not have to read the will.  Sometimes, witnesses must sign in the sight or presence of each other, but the UPC re­quires only that the testator acknowledge his or her signature to the witnesses (UPC 2–502).

Publication Requirements. Some states require a testator to declare to the witnesses that the will is his or her “last will or testament.”

Revocation by a Physical Act of the Maker. A testator may revoke a will by intentionally burning, tearing, canceling, obliterat­ing, or destroying it or by having someone else do so in the presence of the maker and at the maker’s direction.  In some states, partial revocation is recognized.  Of course, where pro­vided, statutorily prescribed methods must be followed.

Revocation by a Subsequent Writing. A codicil can amend or revoke provisions in a will.  A new will may (or may not) revoke a prior will, depending on the language.  If an express declara­tion of revocation is missing, the wills are read together; if there are inconsistent disposi­tions, the second will controls.

Revocation by Operation of Law. A marriage, divorce or annulment, or the birth of children after a will has been executed generally revokes the will (at least as regards the new spouse, ex-spouse, or new children).  Generally, depending on the testator’s intent and applicable state law, a new spouse and new children get intestate shares, and an ex-spouse gets nothing.

 Probate Procedures — Informal Probate. The assets of small estates may be distributed without formal probate.  Title to cars, bank accounts, and other property can sometimes be passed by filling out forms, particularly when it is held in joint tenancy or there is only one heir.  Once a will is admitted to probate, fam­ily members can settle among themselves the distribution of a decedent’s assets, although a court order is needed to protect the estate from future creditors and to clear title.

Estate Administration: The orderly procedure used to collect assets, settle debts, and distribute the remaining assets when a person dies is the subject matter of estate administration.  The rules and procedures for managing the estate of a deceased are controlled by statute and, consequently, vary from state to state.  In every state, there is a special court, often called a probate court that oversees the man­agement of es­tates of decedents.

FAQ

What happens if a person dies without a will? The laws of each state vary slightly in some case and a great deal in others; but generally follow these guidelines:

  • If decedent is married without children, the spouse inherits the whole estate.
  • If decedent is married with children, the spouse and each child share in the estate equally.
  • If the decedent has child and is not married, the estate shall descend to his or her children, and their descendants, in equal parts, the descendants of the deceased child or grandchild to take the share of the deceased parent in equal parts among them.
  • When there shall not be a child or children of the intestate nor descendants of such children, then the brothers and sisters and father and mother of the intestate and the descendants of such brothers and sisters shall inherit the estate in equal parts, the descendants of a sister or brother of the intestate to have in equal parts among them their deceased parent’s share.
  • If there shall not be a child or children of the intestate, or descendants of such children, or
  • brothers or sisters, or descendants of them, or father or mother, then such estate shall descend, in equal parts, to the grandparents and uncles and aunts, if any.
  • If none of the above situations is applicable, such estate shall descend in equal parts to the next of kin of the intestate in equal degree, computing by the rules of the civil law.
  • How large does a person’s estate have to be to justify making a last will and testament?  A will can be important regardless of the size of your estate. With a will, you can be sure that your estate is distributed the way you want it to be. You can designate a guardian to care for your children if both spouses are deceased. Finally, by choosing an executor, you can choose someone you are comfortable with handling your estate.

Is it expensive to have a Will done? That depends on how complicated your will is and how much advance work you do.

 What happens if a person dies without a will? The laws of each state vary slightly in some case and a great deal in others; but generally follow these guidelines:

  1. If decedent is married without children, the spouse inherits the whole estate.
  2. If decedent is married with children, the spouse and each child share in the estate equally.
  3. If the decedent has child and is not married, the estate shall descend to his or her children, and their descendants, in equal parts, the descendants of the deceased child or grandchild to take the share of the deceased parent in equal parts among them.
  4. When there shall not be a child or children of the intestate nor descendants of such children, then the brothers and sisters and father and mother of the intestate and the descendants of such brothers and sisters shall inherit the estate in equal parts, the descendants of a sister or brother of the intestate to have in equal parts among them their deceased parent’s share.
  5. If there shall not be a child or children of the intestate, or descendants of such children, or brothers or sisters, or descendants of them, or father or mother, then such estate shall descend, in equal parts, to the grandparents and uncles and aunts, if any.
  6. If none of the above situations is applicable, such estate shall descend in equal parts to the next of kin of the intestate in equal degree, computing by the rules of the civil law.

Can I change my Last Will And Testament? You can make and execute a new Will as often as you desire. Do not try to change it by using strikeouts and/or written additions. This can cause many problems in interpretation and possibly void your Will. A codicil can be used to amend or revoke provisions in a will.  The codicil is subject to the same legal requirements as the will itself as far as its execution and the capacity of the testator. With the use of word processors, it is just as easy to do a new will adopting the changes. Be sure to put in your new will language such as “I, (Name of Testator) .  .  .  do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking any previous Wills and/or Codicils heretofore made by me.

Trusts

When the legal title to certain property is held by one person while another has the use and benefit of it, a relationship known as a trust has been created. The trust developed centuries ago to get around various nuances and complexities, including taxes, of English real property law. The trustee has legal title and the beneficiary has “equitable title,” since the courts of equity would enforce the obligations of the trustee to honor the terms by which the property was conveyed to him. A typical trust might provide for the trustee to manage an estate for the grantor’s children, paying out income to the children until they are, say, twenty-one, at which time they would become legal owners of the property.

Trusts may be created by bequest in a will, by agreement of the parties, or by a court decree. However created, the trust is governed by a set of rules that grew out of the courts of equity. Every trust involves specific property, known as the res (res; Latin for “thing”), and three parties, though the parties may be the same person.

Settlor or Grantor: Anyone who has legal capacity to make a contract may create a trust. The creator is known as the settlor or grantor. Trusts are created for many reasons; for example, so that a minor can have the use of assets without being able to dissipate them or so that a person can have a professional manage his money.

Trustee: The trustee is the person or legal entity that holds the legal title to the res. Banks do considerable business as trustees. If the settlor should neglect to name a trustee, the court may name one. The trustee is a fiduciary of the trust beneficiary and will be held to the highest standard of loyalty. Not even an appearance of impropriety toward the trust property will be permitted. Thus a trustee may not loan trust property to friends, to a corporation of which he is a principal, or to himself, even if he is scrupulous to account for every penny and pays the principal back with interest. The trustee must act prudently in administering the trust.

Beneficiary:

The beneficiary is the person, institution, or other thing for which the trust has been created. Beneficiaries are not limited to one’s children or close friends; an institution, a corporation, or some other organization, such as a charity, can be a beneficiary of a trust, as can one’s pet dogs, cats, and the like. The beneficiary may usually sell or otherwise dispose of his interest in a trust, and that interest likewise can usually be reached by creditors. Note that the settlor may create a trust of which he is the beneficiary, just as he may create a trust of which he is the trustee.

Express Trusts. Trusts are divided into two main categories: express and implied. Express trusts include testamentary trusts and inter vivos (or living) trusts. The testamentary trust is one created by will. It becomes effective on the testator’s death. The inter vivos trust is one created during the lifetime of the grantor. It can be revocable or irrevocable. A revocable trust is one that the settlor can terminate at his option. On termination, legal title to the trust assets returns to the settlor. Because the settlor can reassert control over the assets whenever he wishes, the income they generate is taxed to him.

By contrast, an irrevocable trust is permanent, and the settlor may not revoke or modify its terms. All income to the trust must be accumulated in the trust or be paid to the beneficiaries in accordance with the trust agreement. Because income does not go to the settlor, the irrevocable trust has important income tax advantages, even though it means permanent loss of control over the assets (beyond the instructions for its use and disposition that the settlor may lay out in the trust agreement). A hybrid form is the reversionary trust: until the end of a fixed period, the trust is irrevocable and the settlor may not modify its terms, but thereafter the trust assets revert to the settlor. The reversionary trust combines tax advantages with ultimate possession of the assets.

Of the possible types of express trusts, five are worth examining briefly: (1) Totten trusts, (2), blind trusts, (3) Clifford trusts, (4) charitable trusts, and (5) spendthrift trusts.

Totten Trust: The Totten trust, which gets its name from a New York case, In re Totten[2]is a tentative trust created when someone deposits funds in a bank as trustee for another person as beneficiary. (Usually, the account will be named in the following form: “Mary, in trust for Ed.”) During the beneficiary’s lifetime, the grantor-depositor may withdraw funds at his discretion or revoke the trust altogether. But if the grantor-depositor dies before the beneficiary and had not revoked the trust, then the beneficiary is entitled to whatever remains in the account at the time of the depositor’s death.

Blind Trust

In a blind trust, the grantor transfers assets—usually stocks and bonds—to trustees who hold and manage them for the grantor as beneficiary. The trustees are not permitted to tell the grantor how they are managing the portfolio. The blind trust is used by high government officials who are required by the Ethics in Government Act of 1978 to put their assets in blind trusts or abstain from making decisions that affect any companies in which they have a financial stake. Once the trust is created, the grantor-beneficiary is forbidden from discussing financial matters with the trustees or even to give the trustees advice. All that the grantor-beneficiary sees is a quarterly statement indicating by how much the trust net worth has increased or decreased.

Clifford Trust. Clifford Trusts, named after the settlor in a Supreme Court case, Helvering v. Clifford,[3] are reversionary. The grantor establishes a trust irrevocable for at least ten years and a day. By so doing, the grantor shifts the tax burden to the beneficiary. So a person in a higher bracket can save considerable money by establishing a Clifford Trust to benefit, say, his or her children. The tax savings will apply as long as the income from the trust is not devoted to needs of the children that the grantor is legally required to supply. At the expiration of the express period in the trust, legal title to the res reverts to the grantor. However, the Tax Reform Act of 1986 removed the tax advantages for Clifford trusts established after March 1986. As a result, all income from such trusts is taxed to the grantor. Existing Clifford trusts were not affected by the 1986 tax law.

Charitable Trust. A charitable trust is one devoted to any public purpose. The definition is broad; it can encompass funds for research to conquer disease, to aid battered wives, to add to museum collections, or to permit a group to proselytize on behalf of a particular political or religious doctrine. The law in all states recognizes the benefits to be derived from encouraging charitable trusts, and states use the cy pres[4] doctrine to further the intent of the grantor. The most common type of trust is the charitable remainder trust. You would donate property — usually intangible property such as stock — in trust to an approved charitable organization, usually one that has tax-exempt 501(c)(3) status from the IRS. The organization serves as trustee during your life and provides you or someone you designate with a specified level of income from the property that you donated. This could be for a number of years or for your lifetime. After your death or the period that you set, the trust ends and the charitable organization owns the assets that were in the trust.

There are important tax reasons why people set up charitable trusts. The Trustor gets five years’ worth of tax deductions for the value of the assets in the charitable trust. Capital gains are treated favorably, as well: charitable trusts are irrevocable, which means that the person setting up the trust (the “Trustor”) permanently gives up control of the assets to the charitable organization. Thus, the charitable organization could sell an asset in the trust that would ordinarily incur significant capital gains taxes, but since the Trustor no longer owns the asset, there is no capital gains tax: as a tax-exempt organization, the charity will not pay capital gains, either.

Spendthrift Trust. A spendthrift trust is established when the settlor believes that the beneficiary is not to be trusted with whatever rights she might possess to assign the income or assets of the trust. By express provision in a trust instrument, the settlor may ensure that the trustees are legally obligated to pay only income to the beneficiary; no assignment of the assets may be made, either voluntarily by the beneficiary or involuntarily by operation of law. Hence the spendthrift beneficiary cannot gamble away the trust assets nor can they be reached by creditors to pay her gambling (or other) debts.

Express Trusts in Business. In addition to their use in estate planning, express trusts are also created for business purposes. The business trust was popular late in the nineteenth century as a way of getting around state limitations on the corporate form and is still used today. By giving their shares to a voting trust, shareholders can ensure that their agreement to vote as a bloc will be carried out. But voting trusts can be dangerous. Agreements that result in price fixing or other restraints of trade violate the antitrust laws; for example, companies are in violation when they act collusively to fix prices by pooling voting stock under a trust agreement, as happened frequently at the turn of the century.

Implied Trusts. Trusts can be created by courts without any intent by a settlor to do so. For various reasons, a court will declare that particular property is to be held by its owner in trust for someone else. Such trusts are implied trusts and are usually divided into two types: constructive trusts and resulting trusts. A constructive trust is one created usually to redress a fraud or to prevent unjust enrichment. Suppose you give $1 to an agent to purchase a lottery ticket for you, but the agent buys the ticket in his own name instead and wins $1,000,000, payable into an account in amounts of $50,000 per year for twenty years. Since the agent had violated his fiduciary obligation and unjustly enriched himself, the court would impose a constructive trust on the account, and the agent would find himself holding the funds as trustee for you as beneficiary. By contrast, a resulting trust is one imposed to carry out the supposed intent of the parties. You give an agent $100,000 to purchase a house for you. Title is put in your agent’s name at the closing, although it is clear that since she was paid for her services, you did not intend to give the house to her as a gift. The court would declare that the house was to be held by the agent as trustee for you during the time that it takes to have the title put in your name.

Factors Affecting Estates and TrustsPrincipal and Income

Often, one person is to receive income from a trust or an estate and another person, the remainderman, is to receive the remaining property when the trust or estate is terminated. In thirty-six states, a uniform act, the Uniform Principal and Income Act (UPIA), defines principal and income and specifies how expenses are to be paid. If the trust agreement expressly gives the trustee power to determine what income is and what is principal, then his decision is usually unreviewable. If the agreement is silent, the trustee is bound by the provisions of the UPIA.

The general rule is that ordinary receipts are income, whereas extraordinary receipts are additions to principal. Ordinary receipts are defined as the return of money or property derived from the use of the principal, including rent, interest, and cash dividends. Extraordinary receipts include stock dividends, revenues or other proceeds from the sale or exchange of trust assets, proceeds from insurance on assets, all income accrued at the testator’s death, proceeds from the sale or redemption of bonds, and awards or judgments received in satisfaction of injuries to the trust property. Expenses or obligations incurred in producing or preserving income — including ordinary repairs and ordinary taxes — are chargeable to income. Expenses incurred in making permanent improvements to the property, in investing the assets, and in selling or purchasing trust property are chargeable to principal, as are all obligations incurred before the decedent’s death.

Taxation. Estates and trusts are taxable entities under the federal income tax statute. The general rule is that all income paid out to the beneficiaries is taxable to the beneficiaries and may be deducted from the trust’s or estate’s gross income in arriving at its net taxable income. The trust or estate is then taxed on the balance left over—that is, on any amounts accumulated. This is known as the conduit rule, because the trust or estate is seen as a conduit for the income.

Power of Appointment. A power of appointment is the authority given by one person (the donor) to another (the donee) to dispose of the donor’s property according to whatever instructions the donor provides. A power of appointment can be created in a will, in a trust, or in some other writing. The writing may imply the power of appointment rather than specifically calling it a power of appointment. For example, a devise or bequest of property to a person that allows that person to receive it or transfer it gives that person a power of appointment. The person giving the power is the donor, and the person receiving it is the donee.

There are three classes of powers of appointment. General powers of appointment give donees the power to dispose of the property in any way they see fit. Limited powers of appointment, also known as special powers of appointment, give donees the power to transfer the property to a specified class of persons identified in the instrument creating the power. Testamentary powers of appointment are powers of appointment that typically are created by wills.

If properly used, the power of appointment is an important tool, because it permits the donee to react flexibly to circumstances that the donor could not have foreseen. Suppose you desire to benefit your children when they are thirty-five or forty according to whether they are wealthy or poor. The poorer children will be given more from the estate or trust than the wealthier ones. Since you will not know when you write the will or establish the trust which children will be poorer, a donee with a power of appointment

Summary

Estate planning is the process by which an owner decides how her property is to be passed on to others. The four basic estate planning tools are wills, trusts, gifts, and joint ownership. In this chapter, we examined wills and trusts. A will is the declaration of a person’s wishes about the disposition of her assets on her death. The law of each state sets forth certain formalities, such as the number of witnesses, to which written wills must adhere. Wills are managed through the probate process, which varies from state to state, although many states have now adopted the Uniform Probate Code. In general, anyone over eighteen and of sound mind may make a will. It must be signed by the testator, and two or three others must witness the signature. A will may always be modified or revoked during the testator’s lifetime, either expressly through a codicil or through certain actions, such as a subsequent marriage and the birth of children, not contemplated by the will. Wills must be carefully drafted to avoid abatement and ademption. The law provides for distribution in the case of intestacy. The rules vary from state to state and depend on whether the decedent was married when she died, had children or parents who survived her, or had collateral heirs.

Once a will is admitted to probate, the personal representative must assemble and inventory all assets, have them appraised, handle claims against the estate, pay taxes, prepare a final accounting, and only then distribute the assets according to the will.

A trust is a relationship in which one person holds legal title to certain property and another person has the use and benefit of it. The settlor or grantor creates the trust, giving specific property (the res) to the trustee for the benefit of the beneficiary. Trusts may be living or testamentary, revocable or irrevocable. Express trusts come in many forms, including Totten trusts, blind trusts, Clifford trusts, charitable trusts, and spendthrift trusts. Trusts may also be imposed by law; constructive and resulting trusts are designed to redress frauds, prevent unjust enrichment, or see to it that the intent of the parties is carried out.

FAQ

What is a Trust? A Trust is an entity which owns assets for the benefit of a third person (beneficiary). A Living Trust is an effective way to provide lifetime and after-death property management and estate planning. When you set up a Living Trust, you are the Grantor; anyone you name within the Trust who will benefit from the assets in the Trust is a beneficiary. In addition to being the Grantor, you can also serve as your own Trustee (Original Trustee). As the Original Trustee, you can transfer legal ownership of your property to the Trust. This can save your estate from estate taxes when you die. Just remember that it does not alleviate your current income tax obligations.

What is an Irrevocable Trust?  A trust created during the maker’s lifetime that does not allow the maker to change it.

What is a Revocable Trust? A trust that can be amended and revoked, usually by the person who established the trust. This trust may become irrevocable and unamendable when the only person who can amend or revoke the trust dies or becomes incompetent.

What is a Living Trust?  A living trust is a trust established during a person’s lifetime in which a person’s assets and property are placed within the trust, usually for the purpose of estate planning.  The trust then owns and manages the property held by the trust through a trustee for the benefit of named beneficiary, usually the creator of the trust (settlor).  The settlor, trustee and beneficiary may all be the same person. In  this way, a person may set up a trust with his or her own assets and maintain complete control and management of the assets by acting as his or her own trustee.   Upon the death of the person who created the trust, the property of the trust does not go through probate proceedings, but rather passes according to provisions of the trust as set up by the creator of the trust.

Will a Living Trust avoid probate?  Perhaps the biggest advantage of a living trust is that it does not have to go through probate, as does a will. However, there are other estate planning devices which avoid probate, such as a joint tenancy, a life insurance policy, and others.

Can a Living Trust be Contested? Yes. A trust can be contested in a special proceeding. There is no blanket rule that a living trust cannot be contested.

What are the Pros and Cons of using a Living Trust rather than a Will? A Last Will and Testament enables you to do the following:

  • You are able to name an executor of your will to handle your wishes as expressed in your will. He or she also will work through the probate process with the aid of an attorney and handle the distributions of your property and assets following court costs, taxes and payment of debts.
  • You are able to list specific items or percentages of your assets as bequests to certain people or organizations.
  • You are able to select a guardian for your minor children should both spouses die before the children are grown. This guardian can also handle the assets passed to the children by you and distribute the assets to the children upon their reaching the age of majority.

A Living Trust has the following attributes:

  • You may also make bequests to specific parties with a living trust. You may elect to distribute your property and accounts immediately following your death or you can set up a plan for distribution over a span of time with conditions to be sure your bequest is being used wisely.
  • You are able to select a guardian for your children until they are of legal age and for their assets.
  • Your living trust will be managed during your lifetime and transferred to another trustee designated by you following your death with no court publicity.
  • Keeping Things Private – Probate is a public proceeding. This means that anyone can go to the court house and take a look at what has been filed on your behalf. A Revocable Living Trust does not need to be filed with a court; therefore it will not be a public record.

Cons of Using a Revocable Living Trust.                                                                                            

  • Up Front Costs are High – In general, it will cost more money to set up and fund a Revocable Living Trust than simply execute a Last Will and Testament. But in the long run the overall time and money spent on a living trust is usually
  • Funding a Trust can be a lot of Trouble – Once your trust has been signed, you are not finished. You will need to contact your banks, investment and insurance companies, and transfer agents to change account and stock ownership and update beneficiaries. You also may have to have new stock certificates issued or assign a partnership or LLC interest to the Trust, If your car is in the trust, you will have to change the title. The same is true for real estate you own. You should carefully consider what kind of assets you have before using a Revocable Living Trust.
  • You most likely will Still Need a Last Will and Testament – You may not have time to continue to transfer every asset that comes into your name into the trust. You will need a Pour Over Will to regarding your assets that have not been transferred. Your Pour Over Will will probably need to be probated.

[1] 486 F. Supp. 2d 309 (D. C. N. Y. 2007)

[2] 179 N.Y. 112 (1904)

[3] 309 US 331 (1940) 

[4] as near as possible to the testator’s or donor’s intentions when these cannot be precisely followed.

Author: William Glover

I received my B.B.A. from the University of Mississippi in 1973 and his J.D. from the University of Mississippi School of Law in 1976. I joined the firm of Wells Marble & Hurst in May 1976 as an Associate and became a Partner in 1979. While at Wells, I supervised all major real estate commercial loan transactions as well as major employment law cases. My practice also involved estate administration and general commercial law. I joined the faculty of Belhaven University, in Jackson, MS, in 1996 as Assistant Professor of Business Administration and College Attorney. While at Belhaven I taught Business Law and Business Ethics in the BBA and MBA programs; Judicial Process and Constitutional Law History for Political Science Department; and Sports Law for the Department of Sports Administration. I still teach at Belhaven as an Adjunct both in the classroom and online. In 2004 I left Belhaven for a short stay at Wells Marble & Hurst, PLLC, and then joined the staff of US Legal Forms, Inc., 2006 where I draft forms, legal digests, and legal summaries. My most recent publications and presentations include: • Author: Sports Law Handbook for Coaches and Administrators, Sentia Publishing, 2017. • Co-Author: In the Arena published by the New York State Bar Association in 2013; • Co-Author: Criminal Justice Communications - Corinthian Colleges, Inc. in 2014. • Co-Author: Business Law for People in Business, Sentia Publishing, 2017.