According to caring.com, only about 42 percent of all U.S. adults currently have estate planning documents such as a will or a living trust. For those with children under the age of 18, that figure is even lower—only about 36 percent have any type of end-of-life plan in place. Many of us go out of our way to avoid thinking about our eventual death. Others just never seem to get around to estate planning, putting it off until we are “older.” Having a will or trust—or both—can give you a significant level of peace. You will know that your loved ones will be well taken care of following your death, or that decisions you would approve of will be made in the event you become incapacitated.
What is a Will?
There is some overlap between wills and trusts, but there are also significant differences. Both a will and a trust tell your loved ones who will receive your assets, they just do it in different ways. A will is a simpler document that allows you to name guardians for kids and pets, designate where your assets go, and specify final arrangements. It offers somewhat limited control over the distribution of assets, and most always have to go through the probate process. Many people try to avoid the probate process for several reasons. It can be time-consuming, expensive, and it makes the contents of your will public.
In the state of Georgia, a person must be at least 14 years old and must have the mental capacity to write a will. Your will must be subscribed and attested to in your presence by two or more witnesses. A nuncupative will (oral will) is only allowed during a time of a serious, last illness, and must be proved by the oath of at least two witnesses. Holographic (handwritten) wills are not allowed in the state of Georgia. Each state has its own rules and laws regarding wills, so if you have a will in another state and move to the state of Georgia, you must ensure it follows Georgia laws.
What is a Trust?
A trust, while more complex, offers more control over when and how your assets are distributed, applies to any assets held inside the trust, and comes in many forms. When a trust is created, it must then be funded by transferring assets into the trust. Trusts are often used to avoid probate and may also have tax benefits that justify the additional complexities and cost.
Another major benefit of a trust is that you can name a successor Trustee in the event you become incapacitated. While none of us ever think we will become incapacitated, illnesses and accidents happen, and it can be beneficial to have a person you trust who can make decisions for you during your incapacitation.
A trust goes into effect as soon as it is funded with your assets, while a will only goes into effect once you pass away. If you only have a will and become incapacitated, unable to make decisions for yourself, your will cannot allow another person to make decisions on your behalf, therefore is not an effective end-of-life planning tool in many cases.
A trust can make provisions for a physical or mental illness, protecting loved ones from having to make untenable decisions. Planning for the future is important on so many levels, but it can feel like an overwhelming task. There are a number of pieces to the puzzle of an estate plan, and while we like to think we will “get to it,” often tragedy strikes, and we never did get to it.
Can You Have a Will and a Living Trust?
For many people, having both a will and a living trust is the best way to build an estate plan, particularly if you have minor children. A trust alone does not allow you to name a guardian for your minor children, or to make provisions for your pets, while a will does. A will also allows you to appoint an executor for your estate and declare your final wishes.
However, having a “standard” will along with your Living Trust may not be the best way to go. There is a type of will known as a Pour-Over Will which works in conjunction with your trust. A Pour-Over Will is like a backup plan to ensure all your assets go through your trust. In the end, the best way to determine whether you need a will, a trust, or both, is to speak to an experienced Georgia estate planning attorney.
Call Our Experienced Atlanta Estate Planning Attorneys
At Hobson & Hobson, P.C., our Atlanta estate planning attorneys can help you protect your property, your estate, and your loved ones after you’re gone. By working on an estate plan now, you can have control over the distribution of your estate and we can help keep your estate out of lengthy and costly probate.
If you have questions regarding your specific case, call us today at (770) 284-6153 or fill out our confidential contact form. We can set up a consultation, so you can review all your legal options.
Attorney Sarah Hobson at Hobson and Hobson, P.C. are powerful advocates for those who fight for better futures for those going through divorce and custody law matters.
