Select Page

Q: Wills vs. Trust. . . why do you say we need both?

A. A Will is a legal document that tells a Court how you want your assets to be distributed after your death. If you have over a certain amount of assets (varies by State), it requires the Executor to go into Court and get an order from the Court to distribute your assets using a process called Probate. Probate can take quite a long time in some states and is typically quite expensive. The worst part is, it’s totally public and subject to the oversight of a broken court system. It is only operative in the event of your death and not your incapacity, so your loved ones could have difficulty getting access to your assets in the event that you were in the hospital and could not communicate.

A Trust is a legal document that tells a Trustee (chosen by you as the creator of the Trust) how you want your assets to be handled if you are incapacitated or in the event of your death. So long as your assets are owned properly by the Trust, it does not need to be brought before the Court, so it’s totally private. And, the person you choose as the Trustee has totally control over the process, which is often a lot less expensive and much quicker than the Court process called probate, which is required with only a Will.

You need to have both because a Trust only works if your assets are owned in the name of your Trust and sometimes an overlooked asset gets left out and it will be subject to the Will.

Q: What is a living will? Why does each person need one?

A: A Living Will is a document that lets your doctor and other healthcare professionals know how you want healthcare decisions made for you if you cannot communicate and should appoint an agent to make those decisions for you. It’s also known as an Advance Health Care Directive or Health Care Directive.

Every adult needs one so that there is no question about whether they want to be kept alive on life support or given hydration or nutrition in the event that they are permanently incapacitated.

Everyone remembers the Terry Schiavo situation in Florida in which Terry’s husband and parents disagreed about Terry’s wishes. The case ultimately went to the Florida Supreme Court and even the State Legislature. A simple document would have made all of that unnecessary.

Today, it’s critical that a Living Will or Advance Health Care Directive also include provisions appointing an agent under the Health Insurance Portability and Accountability Act or HIPAA so that the agent can access your medical records if it’s necessary to make medical decisions.

I worked with one client who was not able to get her mom moved from the hospital where she was on life support to a rehabilitative medical facility for where they may have been able to wean her off life support for over 3 weeks because mom’s health care directive documents were lacking this critical appointment.

Q: What is probate and how does it impact/affect the dispensation of the will?

A. Probate is the Court process that assets must go through whenever anyone dies with anything titled in their own name. Each State has a different cut off on the amount of assets someone must have before a probate is necessary. In California, if someone has less than $100,000 in assets and no real property, they will probably not have to have their assets probated.

The way this comes up is that someone dies and then their family wants to either close bank accounts, sell property or cash in investments. None of this can be done without an order from the Court through a probate if the assets were owned in their loved ones name.

In contrast, if the assets are owned in the name of a Trust, the family can contact their loved ones’ lawyer (hopefully they were working with a Personal Family Lawyer so they know the assets were titled correctly and they have a trusted advisor to turn to) who will complete some paperwork and guide the loved ones through the process with ease.

Find a Personal Family Lawyer at

Q: Who should have a Will/Trust?

A. Anyone who cares about their family and wants things to be as easy as possible for their loved ones after they are gone or if they become incapacitated should have a Will and/or a Trust. But, just having these legal documents is not really sufficient.

What’s really going to make things as easy as possible after the death of a loved one is a relationship with a trusted Personal Family Lawyer.

You see, form legal documents are not going to guide the family; only a relationship with a trusted advisor will do that.

Q: What happens to your money/property/debt after you die?

A. After you die, whoever is in charge of finalizing your estate will inventory all of your assets and liabilities. It’s best if you’ve left behind an easy to follow inventory. A Personal Family Lawyer conducts a Family Wealth Inventory with his or her clients and then updates that document throughout life so its easy to access when something happens.

If the assets are greater than the liabilities, the person in charge of the estate will use the assets to pay the liabilities and then distribute whatever is left pursuant to the Will or Trust. If there is no Will or Trust, then the Court will order the distribution according to State law.

If the liabilities are greater than the assets, the person in charge of the estate will notify the creditors, pay what can be paid and close the estate. In that case, there would not be a distribution to loved ones.

Q: How can you protect your surviving loved ones after you die?

A. The best thing you can do for your surviving loved ones so that life will be as easy as possible for them if you can’t handle your own financial affairs during life and then after your death is to establish a relationship with a Personal Family Lawyer during your lifetime.

If you do that, you will have made the decisions about how you want everything to go after you are gone with a trusted advisor to guide you to the best possible solutions. And, you will leave your loved ones with a gift far greater than money or things; you will leave them feeling loved and well taken care of. They will never have to wonder what to do or how to do it because the lawyer you worked with during your lifetime will be there to guide them.

Q: What do parents need to know in order to protect/provide for their young children?

A. Parents need to know that one of the first calls they make after their baby is born (or even before) is to a Personal Family Lawyer who will guide them to structure their money and their life in the best way possible for their child’s future well-being and care.

Parents must name both short-term and long-term guardians for the care of their kids. And, they must give clear instructions to all of the people they choose. If they don’t do this, they leave their kids’ future in the hands of a broken Court system and a judge that doesn’t know what’s important to them.

Parents must also be clear about the Values, Insights, Stories and Experience they want to pass on. And, they must make sure that the money they leave behind will be immediately available to whoever they choose to raise their children, in a protected manner.

All of this is easy with the guidance of a Personal Family Lawyer, but can be a real nightmare for the families of people who die without planning.

Parents can be guided through an easy three-step process of choosing the right people as guardians for their kids and learn how to avoid 1 of 6 common mistakes at

SOURCE: Family Wealth Matters Blog