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Do I Need a Will, a Trust, or Both?

When you begin your foundational estate planning, you have the option of signing a will, or signing a will and a revocable living trust. This often leads to two common questions:

If I Have A Will, Do I Need a Trust?

Generally speaking, in Arizona, if assets are titled in your name upon your death, those assets cannot be transferred to the people or organizations named in your will without a probate of your estate. Probate is the process of proving to The Superior Court of Arizona that your will is valid. Although the costs of a probate proceeding are sometimes exaggerated, significant paperwork must be filed with the Court and most probates take at least 4 to 6 months to complete.

Fortunately, certain assets, such as life insurance policies or retirement plans with a named beneficiary, property held in joint tenancy or as community property with right of survivorship or property titled in the name of a revocable living trust, are not subject to probate upon your death. For this reason, many Arizonans have elected to form a revocable living trust and transfer assets such as their house, bank accounts and brokerage accounts to their trust. This minimizes (if not eliminates) the need for probate.

If I Have a Trust, Do I Need a Will?

There are at least three reasons you need a will, even if you have already established a trust.

1. Your will is the legal document that nominates your Personal Representative. A Personal Representative (referred to in other states as an "executor") is a fiduciary you select to handle certain administrative tasks in your estate, such as handling creditor claims or filing your final income tax returns.

2. If you have minor children, your will nominates a guardian and conservator for your minor children.

3. If you have a revocable living trust, your will should direct your Personal Representative to pay to your trust any property titled in your name. This is called a "pour-over will" and it ensures that such property will be distributed to the beneficiaries you have named in your trust.

You may make a will, or you may make a will and a revocable living trust, but you should not make a revocable living trust without a will.

To get started on your foundational estate planning documents, contact Grant N. McKeehan, PLC.

Categories: Estate Planning, Trusts, Wills
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Grant N. McKeehan, PLC - Scottsdale Estate Planning Attorney
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