Living Trusts vs. Wills, Part 1
November 12, 2007 | Leave a Comment
Over the next few weeks I’m going to be blogging on the benefits of a Living Trust versus a Will. In my practice as an estate planning attorney in Mississippi and in my law firm in Tennessee I find that creating and using a living trust is often times the best avenue for protecting a family’s assets and making these as easy as possible for the family. This is true for all types of clients but especially true for clients with children.
Mississippi and Tennesse Estate Planning Series:
The Benefits of a Living Will
1. I already have a will. Why would I want to create a living trust?
Contrary to what you have probably always been told, a will may not be the best plan for you and your family - mainly because a will does not avoid probate when you die. For Tennessee residents A will must be verified by the Shelby County Probate Court, For Mississippi Residents a will must be verified by the DeSoto County Chancery Court before it can be enforced.
Also, because a will is only seen and triggers actions after you die, it provides no protection if you become physically or mentally incapacitated. So the court could easily take control of your assets, without your input of what to do, before you die - a concern for millions of older Americans and their families.
Fortunately, there is an extremely simple and proven alternative to a will–the Revocable Living Trust. It avoids the process of probate, and lets you keep complete control of your assets while you are living - even if you become incapacitated - and after you die.
2. What is probate?
Probate is the legal process through which the court fees that, when you die, your debts are paid and your assets are distributed according to your will. If you don’t have a valid will, your assets are distributed according to Tennessee or Mississippi law of intestacy. For a more detailed look at what probate is look at the probate section of the Resources and FAQ page.
3. What’s so bad about probate?
It can be expensive. Legal and executor fees and other costs must be paid before your assets can be fully distributed to your heirs. If you own property in other states, your family could face multiple probates, each one according to the laws in that state. Because these costs can vary widely, be sure to get an estimate.
It takes time, usually anywhere from nine months to two years, but in many instances it can take much longer. During part of this time, assets are usually frozen so an accurate inventory can be taken. Nothing can be distributed or sold without court and/or executor approval. If your family needs money to live on, they must go to the Chancery Court or Probate Court to formally request a living allowance, which may be denied.
Your family has no privacy. Probate is a public process, so any “interested party” can see what you owned and who you owed. The process “invites” disgruntled heirs to contest your will and can expose your family to unscrupulous solicitors.
My next post will look more in depth into the probate of the will. This will lead into a look at how a living trust can be beneficial to people looking to avoid the high cost and long length of time associated with the probate process.
If you would like to gather more information about Living Trusts in Tennessee or Mississippi please call the Ferrell Law Firm at 901-881-6352 today!
