A Will is a legal document that describes how your assets should be distributed in the event of death. The actual distribution, however, is controlled by a legal process called probate, which is Latin for “prove the Will.” Upon your death, the Will becomes a public document available for inspection by all comers. And, once your Will enters the probate process, it’s no longer controlled by your family, but by the court and probate attorneys. Probate can be cumbersome, time-consuming, expensive, and emotionally traumatic during a family’s time of grief and vulnerability. Con artists and others with less-than-pure financial motives have been known to use their knowledge about the contents of a Will to prey on survivors. A Living Trust avoids probate because your property is owned by the Trust, so technically there’s nothing for the probate courts to administer. Whomever you name as your “successor trustee” gains control of your assets and distributes them exactly according to your instructions. There is one other crucial difference: A Will doesn’t take effect until your death, and is therefore no help to you during lifetime planning, an increasingly important consideration since Americans are now living longer. A Living Trust can help you preserve and increase your estate while you’re alive, and offers protection should you become mentally disabled.
About Brittany Martin
Elizabeth Mitchell is a partner in the law firm of Ambler Keenan Mitchell Johnson. Beth devotes her practice to estate planning, Medicaid planning, elder law, special needs planning, and probate and trust administration. She is board certified as a Certified Elder Law Attorney (CELA)* through the National Elder Law Foundation, and she is a Veterans Administration accredited attorney. She is a member of the American Academy of Estate Planning Attorneys, the National Academy of Elder Law Attorneys, the Denver Bar Association, and the Colorado Bar Association, where she is a member of the Elder Law Section.