Chart to explain, compare and contrast issues at incapacity and death with a Will, No Will and a Living Trust
|
With No Will |
With a Will |
With a Living Trust |
At Incapacity (unable to handle your financial affairs |
Court Control: Court appointee oversees your care, must keep detailed records, reports to court, and usually must post bond (even if appointee is your spouse). Court approves all expenses, oversees financial affairs. |
Court Control: Same as no will. |
No Court Control: Your successor trustee manages your financial affairs according to instructions in your trust for as long as necessary. (in some state, court intervention may be required for health care decisions.) |
At Death |
Probate: Court orders your debts paid and assets distributed according to state law. |
Probate: Same as no will, but assets distributed per your will (if valid and any contests are unsuccessful). |
No Probate: Debts paid and assets distributed by successor trustee according to instructions in your trust. Avoid Med-Cal Lien if assets are in Living Trust. |
Court Costs, Legal & Executor Fees |
At Death: Often estimated at 3-8% of estate's value. At Incapacity: Impossible to estimate. |
Same as no will. Costs can increase if will is contested. |
At Death: Usually none if no estate taxes. At Incapacity: None. (Attorney can be helpful for larger estates.) |
Time |
At Death: Usually 9 months to 2 years before heirs can inherit. At Incapacity: Court involved until recovery or death. |
Same as no will. |
At Death: Usually just weeks (larger estates may take longer for estate tax filing). At Incapacity: No delays. |
Flexibility & Control |
None: Court processes, not your family, have control at incapacity and death. When you die, assets are distributed according to state law. |
Limited: Same as no will except, when you die, assets are distributed according to your will (if valid and any contests are unsuccessful). You can change your will at any time. |
Maximum: You can change/discontinue your trust at any time. Assets stay under control of your trust, even at incapacity and after your death. More difficult than a will to contest. |
Privacy |
None: Court proceedings are public record. Family can be exposed to disgruntled heirs and unscrupulous solicitors |
None: Same as no will |
Maximum: Living trusts are not public record. Your family can take care of your financial affairs privately. |
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