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Do I Need a Will or Trust?

Property: If you own property and you care how it is handled after your death, then you need a Will or Trust.
Children: If you have minor children and you want to control who will care for them after your death then you need a Will.
Without a Will, family members may argue or may not step up to care for your children. State law will determine what happens to your property. Also, unless someone intervenes, the public administrator or your creditors will be appointed to settle your estate. In short, most people need a Last Will and Testament.

There are several ways that your property gets from you to your beneficiaries: transfer by will, transfer by trust, and transfer by contract, survivorship or other operation of law:

Transfer by Will ordinarily means that an Executor is appointed to gather your property, read your Will and distribute your property.

The most common transfer by trust involves a "Living Trust", that is, a trust created while you are alive. You name and appoint the Trustee or successor tustee while you are alive. After your death, transfer by Trust means that your Trustee will distribute to your beneficiaries the property you put in the Trust while you were alive and any property that comes to the Trust by pour-over Will. One common mistake with Trusts is forgetting to fund them, that is, forgetting to transfer the appropriate assets to the Trust while the owner is alive.

Transfer by operation of law can mean several things. One common transfer results from the terms of legal title to property, for example, joint ownership "with right of survivorship". If property is owned "jointly /wros" it becomes the property of the survivor upon the death of an owner. Another transfer by operation of law occurs by terms or a contract. Two examples are a "pay on death" clause on a bank account and a life insurance policy.

The interplay of these three transfer types is an important part of estate planning and misapplying these tools is a very common estate planning mistake. It is not out of nosiness that your attorney asks to know all your assets and to see copies of investment account or bank account statements, deeds and other financial records. Sometimes we forget exactly how we set up an account when it was done years ago.

Can My Attorney be Executor or Trustee?

Anyone you choose can be your Trustee. Likewise, almost anyone can be Executor in your Will. Both the positions are considered fiduciary roles and come with fiduciary obligations. Certain standards apply to the conduct of a fiduciary. Generally they must conduct the affairs of the estate or trust as a prudent businessman would do. Both positions require a certain professionalism but an executor needs only a minimum of financial expertise, a trustee, on the other hand, may need quite a bit of knowledge of investing, as the position can exist longer and with less statutory guidance. In short, it is often more efficient that an attorney handle such matters, but it matters whom you choose!

How Can I Minimize or Avoid Disputes in My Estate?

The most important thing you can do is have a well drafted Will or Trust. In the law of estates and trusts there are many words that have specialized meaning. Even some attorneys misunderstand some of the terms and procedures. Kentucky law does not generally certify specialties of legal practice but an attorney who spends his career handling personal injury cases might not be the best person to write your Will. You don't want your estate in a wreck, now do you? As for writing your Will yourself, it is possible to do that under the law of Kentucky. If you fix your own TV set and your own plumbing and deliver your own children on the side then you may be able to write your own Will without any major mistakes. On the other hand, the many hours you will spend at the law library learning estate, tax and probate law might be more valuable than the few hundred dollars you'll spend on even the most complex Will.

There are a number of things you can do in a Will or Trust to reduce costs and prevent problems and disputes. If the family beneficiaries are prone to argument, fights, manipulation or overreaching, then perhaps it would better to choose an executor or trustee from outside the family. When you plan on deviating from the "expected" plan of distribution, even if you choose not to disclose your plan, you should carefully document your intentions, reasons and competence. Also, there are "no contest" clauses that can be included. Nothing can guarantee that there won't be a fight, but with a little care, your plan can be pretty tough to break.

I own Firearms including Class III Firearms, How Can I Set up an Estate Plan for them?

The possession, purchase, transfer and manufacture of firearms such as short-barreled rifle or shotguns, silencers or suppressors, and machine guns (i.e., Title II or Class III firearms) are strictly tracked and controlled by the federal government. A properly drafted Gun Trust can be an effective estate planning technique to own and use Class III firearms for several reasons, including:

-a Gun Trust provides continuity in ownership of the firearms so that beneficiaries of the Trust can receive the firearm without having to submit additional paperwork to government agencies, pay transfer taxes, or wait for the 6-month probate claims perriod.
-All trustees of a Gun Trust can legally use and operate a Class III firearm, whereas an individual owner of a Class III firearm is the only one who can possess the firearm;
-a properly drafted Gun Trust protects all trustees with access to the firearm from arrest, prosecution, and conviction for possession (or constructive possession);

It is an important new development is that after July 13, 2016, new Gun Trust laws will take effect. The regulations can be found on the ATF website. A significant change will be the requirement for all Class III firearm Gun Trust applications to be completed by all trustees of a Gun Trust. Each trustee will be required to submit their fingerprints, photographs, submit to a background check, and notify their local chief law enforcement officer of the acquisition of a Class III firearm. Currently, only one trustee needs to submit to a background check for a Gun Trust application for a Class III firearm and there are no requirements for fingerprints or photographs or notifications to your chief law enforcement officer.
TIME IS SHORT! 1/1/2016

The information on this site is not legal advice. You should consult an
attorney for individual advice regarding your own situation.