A Will is a written instrument by which someone can use to provide a roadmap to their chosen executor on how their property will be distributed upon their death. Wills can be formally executed or created by a simple writing commonly called a holographic will. A formal will is created by a writing signed by yourself in the presence of two disinterested, attesting witnesses. The witnesses are usually provided by the law office that you work with. A holographic will must have the date, signature, and material provisions in the decedent’s handwriting.
How is property disposed of by a Will?
Once the person who created the will dies, the named executor must petition the District Court located nearest the decedent’s domicile to probate the decedent’s estate. The District Court will then supervise the transfer of the decedent’s estate according to the provisions of the Will.
What is a Trust?
A trust is created when one person transfer’s legal title to property to another who holds such property for the sole benefit of designated beneficiaries. A trust document can be created by a declaration of trust, deed of trust, or by a will. A declaration of trust is a document that states that the owner of property now holds the property as trustee for the benefit of the beneficiaries of the trust. A deed of trust is a document that transfers one’s property to another person as trustee for the benefit of the beneficiaries of the trust. A trust created by will is a bequeath of a decedent’s property, in trust, to a trustee for the benefit of the beneficiaries of the trust. By far, the most popular trust document is a declaration of trust.
Don’t forget to fund your trust!
Even if you create a trust that states that your home, vehicles, bank accounts, and any other property that has been transferred to you by deed or formal change of title are part of the trust, they are not part of the trust. If you only declare the above items as part of the trust, they will need to go through probate to be transferred. This scenario is because you must do extra work to fund the trust with these items. For a house, you need to deed the house to the trust. For your vehicles, you need to change the title through the DMV to the trust. For your bank accounts, you need to bring your trust documents to the bank and change the owner of the account to the trust.
How is property disposed of by a Trust?
Generally, in a declaration of trust scenario, once the person who created the trust dies, the successor trustee will take over the administration of the trust. The successor trustee will follow the provisions of the trust document for distribution of the decedent’s estate. Generally, the disposition of the decedent’s estate by the successor trustee is not supervised by the District Court.
