Many of us have thought about protecting our loved ones in the awful event of becoming severely incapacitated or dying. You may have thought about various aspects of estate planning such as protecting property for certain family members, the management of that property or reducing the associated tax burden. Two common tools that are associated with estate planning are a will and a living trust. Even if you're in your 30s, and especially if you have a family, you may want to create a will or a living trust to give you piece of mind. What are some of the key differences between these two devices?
Before comparing some of the key com ponents of a will versus a living trust, let's define the entity called a probate court. A probate court, or surrogate court, is a special type of court dealing with the debts and property of a deceased person. The probate court judge attempts to make sure the deceased individual's creditors are paid properly, and that the assets that remain are distributed to the correct beneficiaries.
1. Avoid probate
When you leave property through a living trust it does not pass through probate. However, property distributed through a will goes through the probate court process. This can take a very long time and prevent designated beneficiaries from receiving assets or property in the desired timeframe. Probate can also be an expensive process adding insult to injury. However, a living trust property can be distributed with no court guidance or directives, avoiding fees as well. In Georgia, you don't have to probate a will if no assets are distributed therein. It could be useful to become familiar with other Georgia probate laws before consulting an attorney.
Do you want the details of your will to become a matter of public record? If you use a will instead of a living trust in estate planning, your opinion may not matter. The reason a will is often not private, is that in most states, the will has to be filed with the local probate court. Once the will has been filed, it's a matter of public record. Therefore, if a relative wants to see how property was distributed it will be easy for them to do so.
However, if you use a living trust, the details written therein will be kept private.
3. Avoiding a contest of "wills"
It is more likely for a will to be legally contested than a properly prepared living trust. This goes back to the aforementioned matter of public record. If disgruntled heirs and other family members have easy access to the details of asset distribution, there is higher possibility for acrimony. The public process of probate can invite parties to contest the will and submit claims. It is important to note that a living trust cannot completely guarantee privacy, but it is far more private than a will.
If you are in the process of estate planning in Georgia, it is crucial to know the differences between a will, a living trust and the various forms of each. Hiring an experienced attorney could save your family significant time, trouble and effort in handling the myriad and complex estate planning issues that will present themselves.