Do I Need a Will or a Trust Ackerman Brown

DO I NEED A WILL OR A TRUST?

J. Max Barger, Attorney, MBAAckerman Brown1250 Connecticut Avenue, NWSuite 200Washington, DC [email protected]

© J. Max Barger, 2012

mailto:[email protected]

TITLE MATTERS


TITLE MATTERS


TITLE MATTERS

Types of Title• Own assets alone, or with others

• Individual• Co-Tenancy

• Joint Tenancy with Rights of Survivorship• Tenancy by the Entirety• Tenancy in Common

• Operation of Law• With Rights of Survivorship• Real Property (in some jurisdictions)• Pay Death/Transfer on Death

• Other Contracts


TITLE MATTERS


TITLE MATTERS

How Assets Pass to Beneficiaries

• Made during the Donor’s lifetime and completed.

• Donor changes title.Gifts


TITLE MATTERS




• With a Will or No Will• Property owned individually or in a tenancy in

commonProbate© J. Max Barger, 2012

TITLE MATTERS



• With a Will or No Will• Property owned individually or in a tenancy in

commonProbate

• Assets held by the Trustee are subject to the terms of the Trust AgreementTrusts

• Life insurance, annuities• Retirement plansContracts• TOD/POD• Rights of Survivorship• Real Estate

Operation of Law

Lifetime Transfers

Transfers at Death



MANAGEMENT OF YOUR AFFAIRS


MAN

AGEM

ENT O

F YOU

R AFFAIRSManagement of the Decedent’s Estate

Probate Assets Probate Estate

Trust Assets Trust Estate

Beneficiary Designations Operation

of Law


MAN

AGEM

ENT O

F YOU

R AFFAIRS

Trust Estate

Probate Assets

Beneficiary Designations

Trust Assets

Management of the Decedent’s Estate


WH

AT DO

I CHO

OSE?


• Planning for death• Probate• Orderly Court supervised transfer of assets• Public accountability• Publicity of Will• Court appoints personal representative, guardian• Creditor claims cut-off

Wills – The Good and the Bad


• Planning for incapacity and death

• Avoids probate• No court supervision • Transfer of title to assets

currently• Accountability according

to the trust term• Privacy of document• Grantor appoints trustee• Creditor claims may be

extended

Trusts – Will It Really Make Things Easier?


WILLS VS. TRU

STSWills – The Good and the Bad

• Larger individual deduction for income tax purposes• Require beneficiaries to

release PR from liability•May help quell contentious

situations•May need the Letters of

Administration to transact some business• International Wills treaty may

make planning with Will preferable for some non-citizens clients

Trusts – Will It Really Make Things Easier?

• Uniform Trust Code implemented in many jurisdictions• Privacy and less formal

reporting requirements• Elimination of multiple

probate administrations• Centralized management of

Decedent’s affairs• The concept of trust is not

recognized in all international jurisdictions


WILLS VS. TRU

STS


APPROPRIATE PLANNING


APPROPRIATE PLAN

NIN

GFoundational Planning – Care of the Property• Revocable Trust and Pour Over Will or Last Will

and Testament• Durable Power of Attorney

• Statutory Power of Attorney

Ancillary Documents

• Standby guardianship for minor children• Healthcare power of attorney for children• Common interest agreement for couples who are

not married, or whose marriages are not recognized

• Equity sharing agreement or partnership agreement

• Certificate of Trust• Funding documentation and instruction• Executive summaries of the primary documents• Record of personal history• Inventory of assets and liabilities• Document locator

Foundational Planning – Care of the Person• Healthcare Power of Attorney (Advance Medical

Directive)• Healthcare Proxy• Living Will• Anatomical Gifts

• HIPAA Authorization• Disposition of Bodily Remains/Funeral Arrangements

Phase II Planning

• Prenuptial or marital agreement• Irrevocable life insurance trust• Domestic asset protection trust• Grantor retained annuity trust• Charitable reminder or lead trust• Intentionally defective trust• Family partnership or limited liability company


DO I NEED A WILL OR A TRUST?

J. Max Barger, Attorney, MBAAckerman Brown1250 Connecticut Avenue, NWSuite 200Washington, DC [email protected]


mailto:[email protected]

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