It’s a common misconception that wills and trusts serve the same purpose in estate planning. Although both are essential tools for asset distribution after death, their functionalities and implications are distinctively different.
A will becomes active only upon death, directing the distribution of assets held in your name. It requires formalities like signing in the presence of two witnesses and only influences assets that do not fall under a trust’s control. Notably, a will can designate assets to “pour over” into a trust, bridging the two instruments in a complementary manner.
In contrast, a trust is operational from the moment it is signed, taking immediate control over assets transferred into it. Trusts, unlike wills, often do not need witnessing, and because they hold assets in the trust’s name, those assets bypass the will entirely. This distinction is crucial for understanding how each instrument affects estate planning and asset distribution.
The case of Gay Dawn Tamplin offers a poignant illustration of these differences. Gay Dawn, residing in Alaska, had both a will and a living trust, with her condominium—a significant asset—placed in the trust to circumvent probate. Intent on leaving the condominium to her life partner, Larry Daly, after a terminal diagnosis, she mistakenly willed the property to him, not realizing the property was controlled by the trust, not her will. This oversight meant her attempt to alter the condominium’s beneficiary through her will was ineffective, as the trust, which became irrevocable upon her death, already dictated the asset’s distribution.
Gay Dawn’s situation underscores the importance of precision in estate planning. To change the beneficiary of the condominium to Larry, she needed to amend the trust itself, not her will. This example highlights how critical it is to understand the properties and stipulations of legal documents, especially under the stress of life-altering events.
Attempting to navigate the complexities of estate planning without professional guidance can lead to unintended outcomes. Estate planning attorneys provide their knowledge and support through challenging times, ensuring your estate planning documents accurately reflect your intentions and comply with legal standards.
From the desk of Attorney Brandon McGee, McGee Law Firm
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