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Will or Trust? Why You Should Get One

Will or Trust?

AVOIDING PROBATE

Many clients want to avoid having their family go to probate court to probate the client’s will after the client’s demise. If you die with a will in place, or without a will, there is a high probability that your family will have to go to probate court.


Probate court is where:

(1) Your will is proven to be a valid will, and your last will;

(2) It is determined that your executor is qualified to serve as executor; and

(3) Creditors can present their claims against the estate. If you have a revocable living trust in place, the probability of your family going to probate court dramatically decreases.


Most of my trust clients avoid the time and expense of probate.For a husband and wife, a revocable trust can avoid two probate proceedings. If you have real estate in more than one state, you should

consider having a revocable living trust to avoid probate in more than one state.

 

A revocable living trust is also a much better way of handling your finances if you become incapacitated than just using a financial power of attorney.

 

AVOIDING GUARDIANSHIP

Avoiding guardianship is one of the goals of estate planning. Avoiding guardianship is even a priority with the courts. As of 2015, a judge is required by state law to inquire as to whether an incapacitated person has signed documents in their estate plan that will allow a person’s loved ones to take care of the incapacitated person without a guardian having to be appointed.

 

If you are incapacitated in some fashion, such as from an accident, stroke, or Alzheimer’s, you do not want your loved ones to have to be under court supervision to pay your bills, manage your assets, or make healthcare decisions for you.

 

I have seen some guardianship court proceedings where the attorneys charged $70,000 in legal fees. Being the guardian of your estate is a real hassle for your loved ones.The guardian of the estate has to prepare an annual accounting to the court and keep a receipt for every expenditure that they have made from your assets.

 

The guardian usually pays an attorney to prepare the annual accounting.Prior to becoming a guardian, your loved one will be required to qualify to be your guardian by taking an online course.


AVOIDING CHILDREN WITH TROUBLED MARRIAGES, DRUG/ALCOHOL PROBLEMS, OR SPENDTHRIFT WAYS

Trusts for your children can be established in your will or revocable living trust to protect your children’s inheritance from divorce, lawsuits, drug/alcohol problems or spendthrift ways.

 

ASSET PROTECTION FROM LAWSUITS

If you have rental properties or large investment accounts, we definitely need

to have a conversation about protecting those assets from lawsuits. For asset protection to be effective, you need to undertake asset protection before you are sued.


DYING WITHOUT A WILL

Dying without a valid will or revocable trust in place creates undue delays, hassles, and costs. If you die without a will or revocable living trust, two attorneys will be involved in your probate, Texas law will determine who will receive your property, and the whole probate process can take much longer to accomplish than if you had a will or trust.

 

If you are married and have children from a previous marriage, it is absolutely vital that you have a valid

will or revocable living trust in place if you want your current spouse to inherit your property. Under Texas law, if you have children from a prior marriage, your children, not your current spouse will inherit most of your property if you die without a valid will or revocable living trust. Also, if your spouse has died and had children from a prior marriage, you need to strongly consider probating your spouse’s will to preserve your right to any property given to you by your spouse in their will.

 

 

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