I Need A Will

I Need A Will!

As a Marin County estate planning attorney, many prospective clients, like clockwork, tell me that they need a will.  I respond by asking them if they know the difference between a will and a revocable living trust.  Most of my prospective clients know what a will is and how it operates, and only some have a limited understanding of a revocable living trust.  However many do not know the major differences between the two estate planning documents (will and trust). To be blunt, if people understood the complex nature of estate planning and its documents, then they would not need to hire Marin County estate planning attorneys to create and draft their will or trust or other estate planning documents.

Will vs. Revocable Living Trust.

A will is a testamentary document, signed by an adult that, upon death, transfers assets to certain designated beneficiaries.  A will is valid upon a person’s death [not incapacity].   The person designated in the will to handle the deceased’s affairs is called the executor.  And all the assets that pass by the will are called probate assets and are part of the overall probate estate.  The larger the probate estate, the more in estate attorney fees and executors fees the probate estate will incur.  This is in turns, means less money to the deceased’s ultimate beneficiaries.  And the larger and more complex the probate estate, the longer the probate estate will be administered in a local probate court.  Lastly, all medical, personal, family and financial information of the deceased will be publicly disseminated in court for anyone in the world to view.

A revocable living trust, on the other hand, is a non-testamentary document that, upon incapacity and or death, will transfer assets to certain designated beneficiaries.  A revocable living trust is a probate avoidance vehicle.  In fact, it is a type of legal contract, used by numerous Marin County estate planning attorneys.  When the trust is created by a person, called the settlor, it must be properly funded.  This means, that the assets must be properly titled and held in trust, as opposed to outside of the trust.

If the settlor is rendered incapacitated during his or her lifetime, the successor trustee basically steps into the shoes of the settlor and assists him or her with their finances.  In addition to the trust, a competent Marin County estate planning attorney would also prepare other documents such as a durable power of attorney and advance health care directive, to address incapacity issues.  These documents will likely avoid a costly and lengthy conservatorship proceeding in probate court. As previously mentioned, a will does not have any affect when a person is rendered incapacitated.

If the settlor dies, then the assets are simply distributed to the designated beneficiaries, subject to any conditions or restrictions.  As a probate avoidance vehicle, a revocable living trust does not have to go through probate court.  This means that a trust estate will not incur probate fees such as estate attorney fees or executor fees.  Furthermore, assets in a trust can be distributed quickly, as opposed to the lengthy and cumbersome probate process.  Lastly, since a revocable living trust is a private document, generally speaking, it will not have to be filed with the court and open for the world to see.

After explaining the above concepts to my prospective clients, a majority of them come to the conclusion that they need much more than a will.  Perhaps a revocable living trust is the more appropriate estate planning vehicle.  Perhaps a simple will suffices.  It all depends.

Every adult should have an estate plan in place to address their potential incapacity and certain death. For more information about estate planning or any other questions regarding estate planning, please contact the Law Office of Matthew W. Harris, Marin County Estate Planning Attorneys, today for a free consultation at (415) 521-5610.  See

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