February 2025
Q: Do I need a trust? I’ve heard that I need one to avoid “probate.” What is “probate”?
A: There are many reasons to use a trust, but you shouldn’t need to pay the fees for a trust just to avoid probate, the legal system that gets dead people’s stuff to the living people who are supposed to get it and pays the bills and files taxes on the way. Probate works, but it’s expensive, complicated and aggravating, and it takes a long time with lots of papers to be filed. There are three basic ways to avoid probate: dying broke (not recommended), a living trust (effective and efficient, but expensive), and beneficiary designations (effective, efficient, and inexpensive, but needs to be kept current).
Trusts do a great job of holding stuff for people who need it, but can’t have it – maybe they’re too young to receive their inheritance, or they have special needs, or are a spendthrift or addict. Trusts are a wonderful tool in these situations, and if you need a trust, it will also avoid probate, which is usually a good thing. If you don’t need a trust, then you might be able to avoid probate with beneficiary designations on your retirement plans, life insurance, bank account (“paid on death” or “POD”), brokerage account (“transfer on death” or “TOD”), vehicle titles, and the deed to your house (“life estate deed”).
If you have real estate in different states, a living trust might be necessary. If your distribution upon death is complex or involves a lot of people, a living trust is a good tool. If you want to be able to make changes to your distribution at death by just changing your trust, instead of going to every bank, broker, benefits person, etc. then a living trust might be for you. But don’t spend the money on a trust without exploring your options.
Q: Am I going to die if I write my will?
A: You’re going to die, but not because you wrote your will. If you don’t take the time to plan, though, you might aggravate those you love the most. It’s no fun to face our own mortality, but mortal we are, and planning around the reality of our demise is an aspect of faithful stewardship of our lives and our assets. Make the time to make a plan.
Q: My spouse doesn’t want to write a will, but I know I need a will. Can I make my own will?
A: Yes, certainly. Keep in mind that your spouse has certain rights, such as the right to 1/3 of your “augmented estate” upon your death, but that otherwise you can make your own provision for the certainty of your own demise. Your spouse doesn’t have to be your executor, agent under power of attorney, or medical agent, but you can name them in those roles even if they won’t accompany you to the lawyer’s office. It’s your life, and you can plan it your way.
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Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Mount Airy
Maryland 21771
(301) 829-3778
Wills & Trusts | Estate Planning | Probates & Estates
Elder Law | Real Estate | Business Planning