A living trust is a means of transferring property to designated beneficiaries upon your death. It serves many of the same purposes as a will and is often touted as preferable, since property in a trust does not have to go through the expense and delay of probate. So if you have a trust, why would you also need a will? The short answer is that a trust can’t do everything.
Even if you have a living trust, there are details of estate planning that are best covered by making a last will and testament. This is a formal legal document that controls the management and distribution of all your property that is not disposed of by other means. A will also lets you appoint an executor, who will serve as your legal representative for all matters involving your estate. He or she is charged with ensuring that your instructions as outlined in your will are followed to the extent allowed by law. In addition, if you should suffer a wrongful death at the hands of another person, your executor can bring a lawsuit to recover money damages for your estate and its beneficiaries.
The major limitation of a living trust is that it manages and distributes only the assets that are transferred to it. That means you must take deliberate action to fund the trust and to maintain it over your lifetime. As you accumulate more assets, you might forget to transfer them into the trust or you might delay transferring them and pass away unexpectedly. If you have no will, any assets outside of the trust are subject to New York intestate succession laws, which may not give your property to the people you want to have it.
This is where a will serves a powerful purpose. It can work in tandem with your living trust, catching any property that you did not transfer to the trust. This is known as a pour-over will, directing how you want those assets to be distributed. Although a probate proceeding is necessary, it is usually simpler and faster, since the bulk of your property will likely be passing under the trust.
While either one of these estate planning documents is better than none, having both a living trust along with a pour-over will best protects your assets, your beneficiaries and your legal rights. At Goldberg Sager & Associates in Brooklyn, New York, we can develop a comprehensive estate plan that minimizes probate while accomplishing your specific objectives. Contact us online or 718-645-6677 to get set up a free initial consultation.
