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Frequently Asked Questions

*This is not legal advice. Statements made may be generalizations and exceptions may apply.
Please seek the assistance of a licensed attorney before relying on any statements contained herein.

Does a Will avoid probate?
No, a Will (or Last Will and Testament) is a legal document that provides instructions to a probate judge regarding the disposition of your property upon your death. A will can only be enforced through a probate court.
How do I avoid probate?
There are 3 general ways to title assets to avoid probate: (i) assets titled jointly with rights of survivorship, (ii) assets that pass by operation of law or beneficiary designation, and (iii) assets in a trust.
What is a trust?
A trust is a contract reflecting a legal relationship between three parties, the Settlor, the Trustee, and the Beneficiary. The Settlor transfers legal title to some or all of his or her property to the Trustee who holds, manages and disburses the trust property and its income for the benefit of the Beneficiary. The Trustee is governed by terms of the Trust Agreement which is drafted by the attorney for the Settlor.
What types of trusts are there?
Generally speaking, there are two types of trusts: revocable “living” trusts and irrevocable trusts.
What are the benefits of a revocable “living” trust?
A revocable “living” trust enables your loved ones to manage and disburse your assets for your benefit if you are incapacitated. It may enable you to reduce or eliminate Federal estate taxes. It may enable you to avoid probate for your estate after you pass on. A revocable “living” trust is able to address the special needs of family members who may have physical or mental disabilities or other personal issues which interfere with their ability to manage their own financial affairs. Lastly, a properly created revocable “living” trust can also protect a beneficiary’s inheritance from lawsuits and divorce.
Why would someone want an irrevocable trust?
Typically, irrevocable trusts are created for tax minimization and to protect assets against third parties.
Can irrevocable trusts be changed?
Yes, more often than not our firm can amend or modify your irrevocable trust
Will a revocable trust protect my assets from creditors?
No, a revocable trust provides no protection against the settlor’s creditors.
Does my limited liability company (“LLC”) protect my assets?
Only if it's set up and maintained correctly. Having an LLC is not enough. You have to follow certain legal formalities for the LLC to be respected in a lawsuit.
Does a Will trump a beneficiary designation for how property is distributed?
No, a valid beneficiary designation for a specific asset controls regardless of what a Will states
What is the difference between an Agent acting under a Power of Attorney and a Trustee?
The difference is the Agent acting under a Power of Attorney has authority over non-trust assets and other decisions, while a Trustee has authority only over trust assets.
How is a Living Will different than a Last Will and Testament?
A Living Will sets forth your wishes regarding life sustaining measures if death is imminent. A Living Will often states the person’s desire not to be kept alive by artificial means when the person has a terminal condition or is in a vegetative state. A Last Will and Testament (or Will) sets forth how probate assets should be divided upon your death and appoints individuals to carry out your intent.