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Testamentary Trust Will: Pros and Cons

Testamentary Trust Will: Pros and Cons

A testamentary trust will, often referred to as a will trust, is a will that creates a trust upon the death of the testator.  A trust, by definition, is an arrangement where property or assets are managed by one person for the benefit of another person.  In a trust, the settlor entrusts their property to trustees, the people responsible for managing the property.  The trustees then hold a legal title to the trust corpus, or trust property, and are required to hold that property for the beneficiary.
A testamentary trust will, then, is a “trust in a will.”  This type of will involves 4 groups of people:
The testator who creates the testamentary trust is called the trustor, or settlor. 
The trustee, who is generally the executor of the will and responsible for managing the trust for the beneficiaries.
The beneficiaries, which can be one or more people, who receive the benefits of the testamentary trust will.
A probate court is required in this type of will, unlike other types that often aim to avoid probate court.  Probate court is responsible for overseeing the handling of the trust by the trustee.
A testamentary trust will is a legal entity and is created to address estate accumulated during the testator’s lifetime.  As with other types of wills, a testamentary trust will has certain benefits over others.

Advantages 

This type of will can be used to guarantee oversight of the testator’s assets, through a probate court.  Additionally, the formation of a trust protects assets meant to be given to minors until those minors become self-sufficient, or meet the terms of the trust.  For example, if a father sets up a testamentary trust for his children in his will, the property and assets may not be available to the beneficiary children until they obtain a bachelor’s degree.  This type of will also saves money, often only costing the amount required to prepare the will, and probate court fees.
Disadvantages


As with all types of wills, there are a number of disadvantages that come with setting up a trust.  The appointed trustee will be required to meet regularly with probate court to oversee the assets and prove that the trust is being properly handled (invested, managed).  This can potentially cost the trustee a sizable amount of money in court fees and time lost (which are deducted from the estate).  
The trustee will also be required to see the trust through its duration, which can lead to legal liability, significant time loss, and emotional attachment.  Additionally, a trustee may not accept the appointment in which case a probate court will appoint another, capable trustee.  The trustee may also become dishonest, forcing beneficiaries to take legal action that may take a long time and cost a lot of money.

A Quick Guide To Attested Wills

A Quick Guide To Attested Wills

An attested will is a will which has a witness that signs as a witness present. The witness will generally attest to the fact that a certain individual wrote the will and that they were of sound body and mind when they did so.
Each jurisdiction will have specific requirements for an attested will. For example, an attested will must be in writing in most jurisdictions and the will should have at least two witnesses whom are not named in the will.
The attested will must also be signed by the individual writing the will, as well as dated. Anytime the will is changed, the signature and date must again be noted. When the will is originally written, the witnesses will also sign and date the will. Witnesses would again be present when changes are made to the will, although it does not necessarily have to be the same witnesses.
Each state has various requirements about signatures on an attested will. For example, the person writing the will may simply use initials or their last name as a signature. In addition, most states require that the witnesses sign at the same times as the person writing the will signed, but this is not always the case.
 While there are some specific laws which apply to writing a will, there are also issues which are simply good practice. For example, it is advised that the writing of the attested will be witnessed and video taped, in case there is ever a questions as to the  writer of the will, or their state of mind.

Look Into Pour Over Will

Look Into Pour Over Will

A pour over will is a legal form created to manage assets or property that were left out of a living trust.  A living trust provides the grantor, or settlor, that ability to transfer control of his or her property to a trustee.  This trustee then manages the assets or property for the beneficiaries of the trust during the settlor’s lifetime.  
A pour over will, then, goes through probate court after the testator’s death.  After probate, any property that has not been assigned to beneficiaries of the will will spill over into the living trust to the beneficiaries of the trust.  Pour over wills work differently than testamentary trust wills, which are wills that create a trust after the death of a testator.  
Instead, the testator of a pour over will has created the trust before his or her death, generally before or during the drafting of the will.  This created trust is linked to the will through the contents of the pour over will, but can exist on its own.  Pour over wills, however, can not function correctly without the presence of a legitimate living trust to “pour” extra assets into.

Advantages 

This specific type of will allows people to avoid inconvenience of dealing with complicated property.  For example, some properties are much more difficult to manage in a trust than in a will, such as a car.  Additionally, the use of these wills can provide a tax benefit, especially for assets that do no particularly fit well in the structure of a trust.  Transfer of some of these assets may lead to an additional taxing of the assets.  
Additionally, these wills can cover newly acquired assets that may not have been added to the will.  For example, if an individual acquires a new, expensive car a few years before his or her death, he or she may have forgotten to change the will to include the newly acquired car.  
Pour over wills will automatically transfer these assets to the linked living trust, therefore avoiding the creation of intestate succession, the state laws’ take on how property should be distributed.  A pour over will is highly recommended when a trust is present, as it can act as insurance for the distribution of property after death.
Disadvantages

Some jurisdictions, however, do not recognize the validity of these types of wills.  Additionally, the existence of a pour over will guarantees that the process of probate will be required.  Probate can cost the trustee, executor, and family members a lot of time and money. 
Conclusion

A pour over will can act as a safety blanket for assets not specifically added to a living trust.  In situations where a trust is present and active, these wills can be more necessary than many people realize.  

Types of Wills At A Glance

Types of Wills At A GlanceWills may be typed, written or oral. In each case, there will be specific requirements for the will to be held legally valid. In fact the laws which apply to a last will and testament will vary in each jurisdiction. In most cases, a will needs two witnesses that can attest to the fact that a particular individual wrote the will and that the individual was of sound mind when doing so. 

Joint Will: Pros and Cons

Joint Will: Pros and Cons

Sometimes, two individuals will decide to make their wills together, leaving their property and assets to each other.  These types of wills are called a “joint will.”  In a joint will, also known as a mutual will, two people (generally husband and wife) write their wills together to ensure that property is disposed of identically.  This prevents the possibility of the wife or husband then remarrying and changing the beneficiaries of the shared estate. 
A joint will is a separate distribution of property by each signatory and, as such, will be treated as such by the probate court.  Mutual wills, virtually synonymous with joint wills, are mutually binding wills that serve the same purpose as a joint will, but are in the form of two or more wills, instead of a single document.  Some states may not permit the use of a joint will and many assume that these forms will create a will contract.
There are four basic legal requirements for the enforceability of a joint will:
The joint will must be created in a specific legal form
The will, or wills, must be contractual in effect
The will must have an intention of irrevocability
The surviving party must have written the will with intention to reflect the agreement
Advantages

As mentioned before, a joint will prevents the surviving person from changing his or her mind about where the shared estate reaches.  This guarantees each person that their intents will be honored, no matter what happens after one dies.  This type of will offers a certain amount of comfort, offering the peace of mind that the right beneficiaries will receive the estate.  
Disadvantages
However, there are a number of disadvantages that come with these types of wills.  For example, there is always a question of revocability which is a possibility as long as both testators are still alive.  Additionally, a joint will leaves assets tied up until both people die.  
Making changes to such wills is also very difficult, often requiring the survivor to go through a lot of red tape.  This event is especially difficult when one testator dies early, leaving property and assets tied up for years, even if the survivor undergoes many life changes in that time.  
Choosing to draw a joint will is a decision that two people must make on their own.  However, the pros and cons of these types of wills should be discussed with an attorney who specializes in estate planning.  Many times, two separate wills with specific instructions and causes can accomplish the same thing.

Deathbed Will Explained

Deathbed Will Explained

The phrase “on their deathbed” is used to describe a situation where an individual is near death and expectant of death.  It is commonly used to describe terminally ill patients or patients that are about to die, either at home or in a hospital.  Many people that are “on their deathbed” may not have drafted a proper will to distribute their assets after death.  In the event where this happens, a deathbed will may be drafted.
A deathbed will is created when a testator is at risk for imminent death.  This type of will is often drawn together very quickly and, as such, may be risky.  Drafting a proper will often requires legal guidance from an attorney that is well-versed in estate law, as these attorney will posses the knowledge of estate law required to avoid errors and potential contesting of the will.  
However, a deathbed will is very conducive to be challenged by an unhappy beneficiary.  For example, if the first born son believe that he is entitled to the majority of his father’s estate, he may challenge a deathbed will.  The son may claim that his father, the testator lacked the required mental capacity to draft a proper will.  The son may also claim that the will was forced, or fraudulent.  
Because of this possibility, a deathbed will is not recommended.  Wills prepared in this way are very prone to errors for a number of reasons:
A quickly drawn will may not properly consider strategies aimed to minimize or eliminate federal estate tax, causing an overabundance of estate tax that may not otherwise need to be paid (at that moment).
A quickly drawn will may not properly distribute property as intended, as certain intricacies may be overlooked.
A deathbed will may be so quickly drawn up that the proper legal requirements for a will may not be met.  For example, if the testator finds out that he or she is about to pass away, there may not be enough signatures from witness not related to the testator and are not beneficiaries.
While a deathbed will may be as valid as a proper will, there a number of mistakes that can go wrong with a hastily drawn will.  Even so, a deathbed will may avoid probate, as it may be considered as valid as a properly drawn will.  In the end, writing a proper will while you are healthy is highly recommended.  It will certainly relieve stress to your family and your beneficiaries.

Holographic Will

Holographic Will

A holographic will is a handwritten will, whereas most wills are typed. However, a holographic will may be easier to prove who the writer is, simply based on handwriting analysis. In some cases, a holographic will is also an attested will, or a witnesses will, but some jurisdictions do not require that holographic wills be witnessed.

The laws which regulate the writing of a will, vary in each jurisdiction. While most wills are typed, many are still hand written. Hand written wills may be more personal and more easy to uphold in Court if it is clearly the benefactors handwriting on the will.

However, many larger estates do not utilize holographic wills, simply because of extend of material required in the will. In addition, holographic wills are generally written without legal advice, which is not good if it used for larger or complicated estates. Contact a will lawyer to consult your case.

The most popular use of a holographic wills is when an estate is valued fairly low or when the individual does not have much property to leave to beneficiaries. In addition, holographic wills are often used in cases where there is not likely to  be disputes amongst beneficiaries.

Holographic wills may be those which leave certain material possessions, such as TVs and specific pieces of jewelry to specific family members. While these same clauses can be used in an attested will, a holographic will can be written without legal advice, unless there are complicated clauses required in the will.

 

Nuncupative Will Guide

Nuncupative Will Guide

There are several types of wills and each has legal requirements which make the will valid. There are handwritten will and wills which are typed by legal professionals. There are also nuncupative wills which are also known as oral wills or death bed wills.
These types of wills generally occur when individuals become suddenly ill and have not yet written a will. The nuncupative will or oral will, must be witnesses by at least two people, preferably by people that are not listed as beneficiaries.
These types of wills are often disputed in court for several reasons. First, the state of  mind of an individual that has become suddenly ill, is often questioned. For example, beneficiaries may argue that the person was unable to think clearly, especially after being notified of their impending death.
In addition, the witnesses may not be considered valid for several reasons. First, witnesses to an oral will may indeed be beneficiaries, simply because it is generally family members and close friends that visit loved ones in the hospital. Witnesses that are listed beneficiaries can often be questioned and may not be considered legal witnesses to the will.
In some cases, hospitals may offer services in which the individual can request a legal witness to their nuncupative will. This may help the will to be upheld by the courts. In addition, it can be beneficial to have the will videotaped, so that the individuals wishes will be more likely to be upheld by the courts.

Steps to Making a Living Will

Steps to Making a Living Will

 

Those that have decided to make a living will must first be sure that they understand the implications of the living will. For example, the living will would be used if they become unable to communicate their health care wishes. These issues deserve serious consideration and individuals should give themselves ample time to make decisions.

The first step to make a living will is to get a living will template. Living will templates can be found online through state run or hospital run websites. The forms may also be obtained from town hall or from hospitals in person.

Once the individual has the living will template, they should review the documents carefully to be sure hat they understand each clause within the document. In order to make a living will, individuals must make selections about which type of health care and life saving measures they would want. 

These decisions can be difficult if the individual does not fully understand specific  procedures Any questions should be directed to a health care professional in order to be sure that the individual fully understands the implications.

If an individual has decided to make a living will, they may also wish to consult with a religious leader if they would like to be sure that they do not violate the precepts of their religion when making selections. Contact a will lawyer to review your case.

 

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