Wills & Trusts
A person’s will names their Personal Representative (also known as an executor) and says to whom their estate passes. A will needs to have two witnesses and the witnesses should sign a statement called an attestation clause so the will can be easily filed with the probate court.
I like planning with wills because the will can easily be changed depending on the client’s circumstances. A will can include all manner of sophisticated trust planning for tax purposes or to best provide for disabled or minor beneficiaries. A trust provision in a will is useful because the trust may never be needed (for example a trust for minor beneficiaries would not be needed if the children grow to a certain age). So you can have the trust planning set up to take effect if certain events arise but you have not gone through the effort to create the trust now.
There are too many details about wills to discuss here but everyone should have a will. Parents with young children should have a will to name the guardian of their minor children and to set up contingent trust or custodial (RCW 11.114) provisions in case money needs to be managed for minor children. A will makes clear who you want your property to go to, who should carry out your wishes (people can more easily argue over those things if you do not state them), and makes it easier and less costly for your Personal Representative to be appointed by the court. You can reference a tangible property list in your will and under RCW 11.12.260 you can recreate this list as often as you want by signing and dating a new list. A will applies to all property in your name that does not pass some other way (e.g. by beneficiary designation, survivorship), so it is a helpful way to set up your Personal Representative to gather all your assets. A will does need to go through a probate proceeding to apply to your property, and if you have real estate in several states your estate may need to be probated in several states.
A trust is a document that designates a trustee to carry out the trust terms for the benefit of people you name (beneficiaries). The most common trust is called a revocable living trust (RLT) and is used primarily to avoid probate for the assets owned in the name of the trust. This RLT planning is very common in states like California where probate is costly and time consuming so people especially want to avoid it. In Washington State most estate planning attorneys do not advise clients to create a RLT for the sole purpose of avoiding probate. However, a trust is more private than a probate because documents filed in a probate are available to the public. In my estate planning work I have seen many very long trust documents (80 pages or more sometimes). There is usually a fancy binder involved. In my experience these trusts are worse than useless because they are hard to understand and invite confusion and disagreement from the people involved with them. A trust designates a trustee and beneficiaries, and it sets clear terms for how property is used for those beneficiaries. The trusts I prepare are 5 -10 pages and I emphasize readability.
If you create a trust for someone else, you can decide the terms by which trust funds are available to that beneficiary. Because of this a trust can be used to protect a beneficiary from their financial issues (generally creditors cannot reach the assets in a trust that you create for another person). Similarly, a trust can protect funds for a disabled beneficiary who if they received funds outright would be disqualified from government benefits.
Trusts can be helpful to organize your estate into certain categories which can have tax advantages. The most common example of this is something called a credit trust (also known as a bypass trust or exemption trust).
Trusts can be a helpful way to own a family cabin (an LLC is another option that can have premises liability benefits) in order to clarify how interests pass from generation to generation and how costs associated with the cabin will affect a beneficiary’s interest.
If you own real estate in several states then a trust could be useful for avoiding several probates (also consider a transfer on death deed RCW 64.80 as a simpler option).
Everyone should have a will and if you are looking for a low cost way to get your will in place consider the following self help resource here.
Legal services in this area include: Will with testamentary trust for minors; Designation of Personal Representative; Designation of Guardian for minors; Tangible Property List; Waiver of bond; Non-intervention powers; Attestation Clause; Testamentary Special Needs Trust; Revocable Living Trust; Credit Trust, Bypass Trust, Exemption Trust; Special Needs Trust; Irrevocable Special Needs Trust; Irrevocable Life Insurance Trust (ILIT); Transfer on Death Deed; Gifting; Charitable Gifting; LLC; beneficiary designation; Health Care Power of Attorney; Financial Power of Attorney; Health Care Directive; Community Property Agreement; Burial Instructions; Tax Deferred Accounts; Property Agreements.