Wills and Trusts

Do you know the difference between wills and trusts? Here's a brief explanation excerpted from the article "Building Blocks of a Financial Foundation" by attorney Lee Phillips.

Testamentary Will

Everyone needs a will. Even if you have a revocable living trust, you need a will. The will names the personal representative (the executor or executrix). A family member, who is geographically near the bulk of your estate, has good business sense, and can be fair with your heirs, is the person you are looking for. It is basically malpractice for the attorney to name himself or herself as the personal representative.

The will names the guardian for your minor children. If you have minor children or grandchildren, you had better see to it immediately that a guardian is named in the parent's will. The will should put restrictions on the guardians. Most wills simply state, "John and Mary guardians to my minor children." You can do better than that. Coach the judge in your will. It should read, "John and Mary; provided they raise the children in our family home where the children are living at the time of my death." "John and Mary; provided they are still happily married and harmoniously living together." "Grandma and grandpa; provided they have the health to take care of the kids." "Grandma and Grandpa; provided they don't sell the kids." You get the picture.

If you already have a will and don't have a living trust, you will have to get a new will that goes along with your living trust. It is called a "pour over will," because it "pours" all of your property, not already in the trust, into the trust for ultimate distribution after your death.

Revocable Living Trust

The living trust allows an estate to avoid probate, get twice the estate tax exclusion, and provide for a smooth transfer of property. It is definitely worth having for most families. Yes, there is a big argument in the legal profession between the standard will/probate guys and the living trust "hawkers." I come down in favor of the living trust, but I think it is your decision. Frank Sinatra was called the "Chairman of the Board," and he knew how to handle money. His living trust provided his estate with total privacy, much to the media's chagrin.

Many living trusts out there do not do what they are supposed to. The problem usually rests with the lawyer and user of the trust, not with the trust itself. The trust has to be maintained, and it has to "own" all of your estate. It isn't hard to manage, but the lawyer never takes the time to teach you how to do the management, and you can't afford to pay the lawyer to do it for you. As a result, most people who get a living trust don't get the benefits they were promised. The living trust will "overlap" with a durable power of attorney.

Durable Power of Attorney

Durable powers of attorney allow an individual to control the property of a person who is unable to control their own property. People of all ages, not just old people, fall victim to accident or illness and are rendered unable to control their business life. A good living trust will have a provision that automatically lets a successor trustee manage trust property if you, acting as the original trustee, become incompetent. The durable power of attorney lets the person of your choice manage all of your other business affairs when you can't do it. Power doesn't transfer from you until the criteria outlined in the document are met, then there is an automatic transfer of power. This prevents messy court proceedings that are required to name a guardian/conservator for an incompetent individual.

Many powers of attorney include a section that addresses an individual's instructions and desires for their health care. This is a durable power of attorney for health care, which appoints an "agent" and grants them power to interface with the medical industry. The durable power of attorney for health care can be part of the document entitled durable power of attorney or it can be a separate document. It deals only with the medical treatment, not the right to die, which is addressed in a living will.

Living Will

A living will directs the doctors to keep you alive or pull the plug. You need one and so does the rest of your family. The best place to get one is in your hospital. Hospitals give them away free, and the hospitals like to see their own document rather than the 30 page beautiful, very expensive document you get from your lawyer.

About Lee Phillips

Attorney Lee R. Phillips is a nationally recognized expert in the field of finance, asset protection, and estate planning. Lee is licensed to practice law before the United States Supreme Court and also holds licenses in insurance and securities. Lee is an engaging, dynamic speaker and has spoken to over a half million people throughout the United States, Canada and the Pacific Rim helping them understand the law and how to use it to their benefit. His specialty is in creating easy to understand, do-it-yourself asset protection and estate planning documents, including wills and trusts.