Legally Speaking: Will vs. revocable trust – Which one is for you?

Legally Speaking: Will vs. revocable trust – Which one is for you?

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS:

I have a friend who says I’m crazy to have a will rather than a revocable trust because probating a will is so time consuming and expensive.

THE QUESTION:

Is she right?

THE ANSWER:

In certain situations, probating a will may be more expensive and time consuming than having your assets pass pursuant to a trust. However, unless there is a will contest or your executor elects to take commissions, getting a will admitted to probate is generally a relatively quick and inexpensive process.

While I do not recommend a will to a client who is estranged from family members or who anticipates a will contest, I do recommend a will for clients whose heirs are easy to locate and on good terms, and whose executor is a family member or friend who is unlikely to take commissions. That is because under those circumstances, the probate process is straight forward and the legal fees associated with the process are generally quite modest.

The probate process is started when the person named as the executor under the will files a short petition with the surrogate’s court seeking letters testamentary. The petition provides information about the decedent, his heirs and his assets. Individuals in line to inherit and people named in the will must get notice of filing and/or sign a consent form.

The consent forms are filed with the court along with the petition, the original will and death certificate and a fee that ranges from $45 to $1,250. Even during the pandemic we are now experiencing, the surrogate’s court has been processing probate petitions and issuing letters testamentary within a few weeks.

Once letters are issues, the executor has the authority to sell property, close accounts and otherwise marshal the decedent’s assets to ultimately distribute those assets in accordance with the terms of the will. Provided the executor choses to forego commissions, the process of obtaining letters testamentary often costs less than $3,000, including the filing fee.

Although it may cost less to distribute your assets pursuant to a trust, creating a trust often costs more than will and there are frequently expenses involved in funding the trust that are not incurred when you have a will prepared.

In addition, having a trust does not guarantee that your entire estate will pass to your beneficiaries without court intervention. It is not uncommon for people who opt to have a trust created to forget to put some of their assets into the trust.  If they do not retitle an account or a vehicle, for example, the trust will not govern how those asset are distributed. In that case, someone will have to petition the court for the authority to dispose of those assets.

Getting back to your question, you are not crazy for having a will rather than a trust. Although your friend’s circumstances may dictate that a trust is the better option for her, as I mentioned above, I generally recommend that my clients have me prepare wills as part of their estate plans. That being said, if after hearing the pros and cons of having a trust a client choses to have me prepare a trust, I am happy to do so. The important thing is that the client makes an informed decision.

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected]

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