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Wills and trusts are important tools used in estate planning. There are pros and cons to each, and it is also possible to use both together to meet your estate planning goals. This is why it is so important to consult with an estate planning attorney. An experienced Chicago wills and trusts lawyer at Malman Law will be able to advise you on the best tools and strategies to employ in meeting your particular goals.

What is a Will?

A will is a legal document that describes what you want to happen after your death. It commonly deals with financial issues, such as settling your debts and distributing your assets. A will can also state what you wish to happen with your remains, what funeral arrangements you would like, and any other directions you have for your loved ones.

In order to be legally valid, a will must be signed by the person making it (the “testator”) and two witnesses who are over the age of eighteen. While the law does not require an attorney to prepare a will in order for it to be valid, an attorney can reduce the risk of the will being challenged in the probate court, or other problems that prevent the will from being enforced.

When the testator dies, his or her will is submitted to the probate court. Potential beneficiaries have the opportunity to challenge a will if there is evidence that it is not legally enforceable. (This can occur if the testator was not able to understand the will, or was under duress or coercion when it was signed.) If the will is accepted, the probate court will appoint an administrator to resolve the testator’s financial matters in accordance with the will.

What is a Trust?

A trust is a legal relationship between a person who gives property (the “grantor”) to a third party (the “trustee”) to be managed for a named beneficiary. A trust can be enacted during a grantor’s lifetime or upon the grantor’s death. If a person’s property is in a trust, it can be dispersed by the trustee after his or her death without the intervention of the probate court. This allows for a more timely and cost-effective dispersal of property. A trust can also confer certain tax benefits, though this depends on the type of property at issue, how long it was held, and the state in which the person died.

Another benefit of a trust is privacy. Probate documents (including wills) are usually available to the public. Sometimes you can convince the judge that there is a reason for them to be sealed, but this is the exception to the rule. A trust does not have to be submitted to the court. Information about your assets can, therefore, be restricted to those with a legal interest in the trust.

Should I Use a Will or a Trust?

There are pros and cons to only using a will. There are also pros and cons to using a trust, so you must consult with an estate planning lawyer about which tool or tools are right for you. In many cases, a person might use both a will and a trust to meet their goals. Here are some things to consider:

  • There are tax implications to transferring property, whether the transfer occurs through a will or a trust. Consult with a tax lawyer or accountant about your specific circumstances.
  • A trust can be used to provide for the long-term management of assets. For example, your heirs might not want to sell your real estate immediately upon your death. By allowing for the real estate to be managed in a trust until it is a good time to sell, your heirs can maximize the value of your assets.
  • Some assets are a combination of an immediate financial interest and a long-term management interest. For example, stock in a publicly-traded company can be sold for an immediate valuation, but it might also come with a voting interest in the company. A will, a trust, or both might be needed to get the most value out of this asset.

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