Living trusts are typically used to avoid probate. Legally, a Will is not needed if someone were to pass away without any probate assets; however, most clients do not completely fund their living trust, resulting in assets that need to be probated and distributed via a Will.
Certain assets, like property, are often not titled into a trust prior to the grantor’s death. Some clients forget to title (fund) their property into the trust, or choose to leave it out of their trust entirely. When this is the case, a “pour-over” Will comes in handy. Any probate asset owned at the time of death will be transferred to the trust for trustee management and distribution; however, this does not avoid probate for the property left out of the trust.
If a client elects not to form a trust, or intentionally leaves assets outside of their trust, a Will is recommended to ensure probate assets are distributed consistent with their intentions. Another important reason for including a Will in an estate plan is the designation of a guardian for minor children. Wills are the simplest document that allow for direction on where minor children should go if their parents become incapacitated or pass away.
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