Do I Still Need a Will if I Have a Living Trust?

Category: Living Trust | Trusts

Do I Still Need a Will if I Have a Living Trust

So you want to avoid probate. A living trust is a great way to transfer your assets to your heirs smoothly without the litigation and fees that come with probate. Sounds simple, right? All you need to do is transfer all of your assets to a living will and your family won’t have to deal with any litigation after you pass away. No will needed, right?

Not so fast.

Even if you have a living trust, you still need to write up a will. There are many reasons to create a Last Will and Testament. Writing a wills is a relatively simple process, but it can have long-term benefits – including doing a few things that trusts cannot. Let’s look at some reasons to include a will in your estate planning strategy:

Cover Remaining Assets Not everything can go into your living trust. Life is unexpected. Even if you continually add assets to your trust throughout your life, you may still end up with things that have not yet been added to the trust when you pass away.

For example, any remaining cash that you have at the time of your death will have to be divided because cash cannot be transferred through living trusts. But your will can instruct your personal representative on how to deal with these remaining assets.

One way to do this is to write a “pour-over” will. This type of document lets your remaining property transfer into your living trust. This property will still have to go through probate, but it is better than having the state decide where it will go – which is exactly what will happen if you do not have a will.

Name a Personal Representative – A will also allows you to name a personal representative. This is the person (often your spouse or another relative) who can manage your debts, remaining assets, and other financial matters (such as funeral expenses) after your death.

If you do not have a will or do not name a personal representative, you could be leaving a mess for your family or the state to clean up for you. Naming a personal representative can give you and your family much-needed peace of mind.

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Determine GuardianshipA will also allows you to name a guardian for your children. You cannot do that with a living trust. It is possible to put property for your children into a trust and name them as a beneficiary, but until they turn 18 you will need to name someone who will manage that property. You can name property managers in your will as well.

Other Matters to Consider

Okay, so you have a will and you have a living trust – are you done planning yet? Every estate is different, but you still may have work to do to thoroughly plan for the future, because there are issues that cannot be handled by living trusts or wills. If you wish to transfer the following, you need to create separate, specific documents:

  • Passwords and answers to access online accounts
  • Final wishes
  • Assigned caretakers or money to take care of your pets
  • Assets for maintenance of grave sites
  • Digital asset maintenance
  • Donations to specific charitable organizations

It is rare for an estate planning strategy to be fully executed in one document. Documenting your wishes for your family, friends, pets, and property requires a lifelong relationship with your estate planning attorney and trusted financial advisers. Contact us today to begin planning your estate while you still have time to set up everything the way you want it.

About the Author:

Christopher Q. Wintter is the President of Wintter & Associates, P.A., a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.