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Oklahoma Estate Attorneys, PLLC.

Does Someone Ever Need Both A Trust And A Will?

Absolutely, everyone who has a trust should also have a will. Let me give you two examples. I have had a client at this office who inherited property from a distant uncle at the time when she was exceedingly ill and unable to manage that property. Because she was ill and unable to manage the property, the inheritance did not make it into her trust during her lifetime. The way we put the property into her trust was by using her will after she had passed on. Another way to say that is a will is something of a safety net to assure that everything gets into your trust, even if it did not make it into your trust during your lifetime.

The second example is that there are many sorts of claims that can only be made by the person appointed by the court in a probate. For example, if one’s death is caused by the wrongful action or mistake of another, the only person who can bring the lawsuit against the person who caused your death is your executor appointed by the court. It is important to most of us who would be in charge of such a lawsuit, and in charge of the money that was received from such a lawsuit. Therefore, you should have a will telling the court whom you trust and whom you desire to control your estate in such a situation. In summary, yes, you would need both the will and a trust, one would hope not to have to use the will, but it is very important that it be there in case it is needed.

Are Wills And Trusts Used For Different Purposes?

Wills and trusts are generally used for the same purpose, to control your personal assets when you are no longer able to do the management yourself. However, wills and trust each use a different mechanism to achieve that purpose. The will uses the court system and follows the government rules; the other, your trust, is your own set of rules that do not rely on court interpretation and court guidance.

There are also subsets of trusts known as asset protection trusts, which have a slightly different purpose. During your lifetime, they protect your assets from creditors and predators, but at your death or incapacity, they switch purpose to management of your estate just as a living trust or your last will and testament would change.

What Do You Discuss With Potential Clients In The Initial Consultation?

We need to first gain an understanding of what our client owns. We need to make sure that if there are tax implications to be handled, that we recognize those in advance and deal with them appropriately. We next need to know what the client’s family situation looks like. Do they have stepchildren, do they have children who might be in trouble with the internal revenue service or with creditors, do they have children who are in jobs that might reasonably be expected to bring litigation to their lives and perhaps claims of creditors; we need to know all of these things so that we can plan around issues that could foreseeably arise.

We next need to know what our client wants to happen with their estate if everything happens smoothly. Then we will need our client’s backup plan in case some things do not go smoothly. For example, if a client’s only child were to pass away before the client passed away, we would need to know the client’s backup plan for who would receive the inheritance. Might it go to a charity, or go to the church, might it go to family members who are not as close as the child. We will need both, an ideal plan and then a backup plan for our client.

We will also need to know if the client has assets that they want protected at all costs, either for themselves or for their children. If so, they may need to consider an asset protection trust. We need to know the client’s health because if a client is facing a reasonable likelihood of serious long-term illness, we will need to help our client plan around the financial needs that could come up during such an illness, particularly should they need long-term care. We will help them plan for that and plan their finances such that they are not indigent when that occurs. We will be inquiring closely about our client’s health and their family health history so that we know what our client might be facing and how to plan the finances accordingly.

For more information on Necessity Of Both Trusts & Wills, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (405) 754-4166 today.

Terrell Monks, Esq. - Estate Planning Attorney, Edmond City

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