Most people assume that a will is a sufficient estate plan. A will controls assets that were owned individually in the name of the deceased. These assets must be transferred by the Probate Court. The Will does not avoid probate. Instead, it provides instructions to the court as to the disposition of the assets. A will cannot avoid the costs, delays, or publicity of the court system. A will also serves no purpose until you die, offering no protection during sickness, disability or terminal illness.

Most people realize that surviving joint owners will assume ownership of the assets after the first owner dies. This is an advantage to holding assets jointly. However, there are also limitations to joint ownership. Jointly held assets are subject to the claims of creditors made against any of the joint owners. A lawsuit, divorce or collection action made against a child whose name is on your assets could result in the loss of the asset. Jointly held property includes no personal instructions, can produce unexpected results as to the disposition of assets and provides only partial protection against capital gains taxes.

A Living Trust is a written agreement that describes who is to manage your assets, for whose benefit and by what instructions. The trust assumes authority over your assets after you assign them to the trust, but still leaves you in control. As a result, when you are no longer able to manage them yourself, there is no need for legal intervention or court supervision to manage your affairs or distribute your assets.

The Trust leaves you in control of your assets for as long as you are able. The person that controls a trust is called a Trustee. You serve as Trustee at first. Once you are unable to manage the assets, your Trust names someone to succeed you; a spouse, a child, a bank or anyone you have chosen. This Successor Trustee follows your instructions on the Trust as to how to manage and distribute the assets. Because the assets are held by the Trust, they do not have to be probated when you die. You can instruct your Successor Trustee to do the same things you might tell them to do in a Will, such as when to distribute money to your children, charities, etc.

A complete estate plan should include not only a Trust, but also a Pour Over Will, Durable Power of Attorney, Health Care Proxy and Living Will. It may also include Memorial Instructions, a list for any distribution of personal property and an Anatomical Gift Form. John Rexford presents these documents as a complete package, which can be kept in the privacy of your own home. The documents are organized in a 3-ring binder to accomodate planning and be easy to use. They can be amended or revoked at any time by the original author or authors.

The reason to consider a Trust is that you work hard for what you have. A Trust gives you control over your assets, whether you are healthy or sick, then leaves them to those you care about quickly, privately, and at the lowest possible cost. If you do not wish to subject loved ones to the costs and delays of Probate Court and the publicity of legal proceedings, you should consider a Living Trust.

A Living Will is different than a Living Trust. A Living Will informs a medical doctor of one’s preference not to be kept alive by artificial means if terminally ill with no hope of recovery. Massachusetts law permits you designate someone to carry out this decision for you when you are not able to do so yourself. As a result of this law, a complete plan should also include a written Health Care Proxy. It relates to and works together with a Living Will. Both can be obtained as part of a package.

Families with minor children should definitely choose someone to raise the children if something happens to the parents. Guardians for minor children can be nominated by you as part of your plan. Legal proceedings for the the guardianship or conservatorship of a disabled or incompetent adult are not necessary, if your plan includes a Durable Power of Attorney. The Power of Attorney allows you to delegate decision-making authority to someone else, without court hearings. This provides cost-effective protection for you and your family.