In Wills We Trusted

Ask most people if they’ve done their estate planning and a common answer is, “Yes, I have a will.” However, estate planning is not just a plan for death. It’s a plan for life that addresses what happens if you become disabled. About half of us will eventually becoming disabled. You can choose ahead of time who will be in charge of your affairs if you become disabled through a power of attorney, health care proxy, and a trust.

A will cannot provide for disability. A will tells the world where you want your assets to go when you die. A will is probated, which means proven, in court, and becomes a public document. Those without their own living trust plan, with their personal choices for who will be in charge if they become disabled, risk getting the state’s plan of guardianship proceedings where the court chooses who will handle your affairs if you become disabled.

Probate court proceedings can go smoothly but they may also be complicated, such as having a special needs child or disinheriting a child. Also, if you own property in another state, a trust makes more sense than a will because you may deed the out-of-state property into the name of your trust, and avoid both a New York probate and a probate in the other state.

Having a will as an estate plan does nothing to protect your assets from long-term care expenses for either care at home or in a nursing facility. Without a trust to protect your assets from long-term care costs, by the time you pass there may be no assets left for your heirs.

Trusts can also protect inheritances from children’s divorces, lawsuits and creditors and pass those assets by blood instead of by marriage. In today’s world, a “simple will” often does more harm than good by giving the client a false sense of security that their affairs are arranged.

Elder law estate planning addresses the issues mentioned above, plus many more, including funeral and burial instructions, organ donation, and final instructions to the family.

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