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Wills vs. Living Trusts

Although you are better off having a will than having nothing; a will is not enough.
Consider sitting and reviewing your estate plan with an attorney that focuses in the area of estate planning and elder law. An attorney that know estate planning and elder law can help you and your family make the proper decisions on how to protect your families assets. Our attorneys are not only trained in handling simple estate will probate matters, we take care of complex living trust estate litigation in the event of a contest or fraud in Nassau County, Suffolk County, Queens County, Bronx, Westchester, Richmond County, Manhattan and Brooklyn Kings County New York.

Name beneficiaries for property. The main function of both wills and a living trust is to name beneficiaries for your property. In a will, you simply describe the property and list who should get it. Using a trust, you must do that and also “transfer” the property into the trust. (See “Transfer of property into the trust,” below.) Any property transferred into a trust avoid the hassle and expensive costs of probate.

Leave property to young children

Except for items of little value, children under 18 cannot legally own property. When you leave property to a minor, that property must be managed by an adult – at least until the child turns 18.

Avoid probate

Property left through a living trust does not pass through probate. Property left through a will does go through probate. Any property left to heirs in a living trust go straight to a beneficiary without any attorney or court intervention.

Avoiding a conservatorship

In a living trust, you can name your spouse, partner, child, or other trusted person to have authority over trust property if you become incapacitated and unable to manage your own affairs. You cannot do this with a will, however you can also make a durable power of attorney to appoint someone to manage your finances. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about the Other Advantages of Living Trusts.

Protection from court challenges.

Court challenges to living trusts are rare. But if there is a lawsuit, it’s generally considered more difficult to successfully attack a living trust than a will because wills are easily challenged in the court of law. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about the Other Advantages of Living Trusts.

Revise your document.

Both revocable living trusts and wills allow you to revise your document when your circumstances or wishes change. The decisions you make in these documents are not set in stone until you die.

(On the other hand, irrevocable living trusts cannot be changed after they are finalized. These are usually used by the wealthy to shelter money from taxes and are much more complicated than the revocable type. See a lawyer at the law office of Castiglia-Rubinstein & Associates if you want to make an irrevocable living trust.)

Privacy after death

After death, a will becomes a public document filed in segregates court for the world to see. A living trust does not, a living trust stays private, so many people choose to use a living trust to keep their affairs private. Speak with one of the attorneys at the law offices of Castiglia-Rubinstein & Associates to find out more about Is a Living Trust Public or a Private Estate Planning Vehicle?

Notary public

Unlike wills, living trusts must be signed and stamped by a notary public and in the state of New York should be executed in front of an attorney. See “Witnesses,” below to learn the steps required to finalize a will.

Transfer of property into the trust

To leave property through a living trust, you must transfer the property into the trust. For many items, this is as easy as making a list of the property and attaching to the trust document. However, items with title documents, such as real estate, must be re-titled so that the owner of the property is the trust. This is not usually complicated or particularly difficult, but it is an extra step that you must take. No transfer of property is required when using a will.

Guardians for children

In a will, you can name guardians to care for minor children. You can also do this in a living trust with a proper Pour Over Will and appointing a proper Guardian. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about how to protect Your Children in the event of your untimely death.

Property managers for children’s property

In a will, you can name someone to manage any property left to or earned by your children. You can also do this in a living trust with appointing a proper Guardian and trustee.

Naming an executor

You can use your will to name an executor who will be in charge of wrapping up your estate after you die. That person will be responsible for communicating with the court, paying your bills, and, eventually, distributing any property that goes through probate. In a living trust you name a trustee and an executor of your living will. In a living trust, you name a successor trustee who will manage any of the property left through the trust.

Ease of creating the document

Wills are simple documents that require no special language. They must be witnessed by two people and signed by the will maker. Similarly, there are no laws that require living trust to be complicated. However, because a living trust document must cover the trustee’s duties, they tend to be more complex. Also, instead of witnesses, you must have a notary public sign the document and in the state of New York a trust should be witnessed in front of an attorney. Finally, trusts are more involved to make because they avoid probate and they require that you transfer property into the trust, see “Transferring property into the trust,” above.

Requires witnesses

Wills must be witnessed by two people who will not receive anything under the will. Including a self-proving affidavit with your will may make it easier to get through probate, and those must be notarized. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about how the Executing of a Will works.

What Living Trusts and Wills Cannot Do?

Reduce estate taxes. Neither wills nor can living trusts help you reduce estate tax. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about whether your estate might be liable for Estate Tax.

Leave money to pets. Since pets cannot own property, so you cannot leave money or property to your pets. You can use your will to leave your pets to a trusted caretaker, or you can create a living trust pet trust. But if you try to leave your pet property, that property will end up in your residuary estate. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about the Strategies for Taking Care of Pets .

Leave final wishes. It is permissible to leave funeral instructions and other final wishes in your will or living trust estate plan.

Leave passwords for online accounts. After you die, your executor will appreciate being able to access your online accounts, computers and other devices. However, do not leave this information in your will or living trust. Instead, create a separate document and keep it in a secure place with your other estate planning documents. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about how to protect and leave heirs Access to Online Accounts.

Do I Need a Will or a Living Trust?

Most people need a will, but if you have assets that are greater than $ 50,000 and you own a home or you own property then you need a living trust to avoid probate.

What If I Don’t Have a Will or Living Trust?

If you don’t make a will or a living trust, your assets will go to probate and your property will be distributed according to the laws of your state. Speak with one of the attorneys at Castiglia-Rubinstein & Associates to find out more about the Intestate Succession laws in the state of New York.

Estate Planning
  • Comprehensive Estate Planning
  • Living Trusts
  • Life Insurance Trusts (ILT’s)
  • Family Limited Partnerships (FLP)
  • Charitable Planning
  • Estate and Gift Tax Planning
  • Estate Transfer and Heir Planning
  • Reducing Federal Estate Taxes
  • Medicaid Planning
  • Medicaid Applications
  • Special Needs Children (Special Needs Trusts)
  • Education Trust
  • Legacy Planning
  • Financial Planning & Estate Planning

Elder Law and Medicaid Planning

About 6 out of every 10 people will need to reside in a nursing home in their senior years. The cost of residence in a New York City nursing home is approximately $10,000 to $14,000.00 per month. For many families this expense will wipe-out a lifetime of savings. With proper planning, the client can ensure that (i) their assets will pass to their loved-ones pursuant to the client’s goals, (ii) the client can retain significant control of their assets while they still need them, and (iii) the client will qualify for Medicaid coverage when it is needed. Our attorneys will help you and your family with Medicaid applications and Medicaid planning.

We are dedicated to your success — so contact us. Speak with one of our knowledgeable Long Island will and estate litigation, living trust estate litigation attorneys today from wherever you are in New York in Nassau and Suffolk, Brooklyn, Kings and Queens Counties, on Long Island and all New York City boroughs including Bronx, Westchester, Richmond County, and Manhattan.

Call 1-800-960-1529 today.

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You should be prepared if a loved is going into a nursing home or already resides in a nursing home

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Trust vs WillsRemoval of a Trustee * Guardianship * Probate * Beneficiary Rights
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts
In Home Care * Supplemental Needs Trusts  * Fraudulent Transfers

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