Legal Question in Wills and Trusts in New York

Will vs. Trust, things to consider

There is no way to answer your question without looking at your individual situation, but maybe the following will help.

A trust is a legal instrument that manages assets for the benefit of a "beneficiary" or class of individuals. When property is held in trust, it is managed by a "Trustee", not by the former owner (an attorney, or a professional trust manager). If properly structured, a Trust can last longer than the life of the person who has assets that they want to protect, and the formation of a trust can protect the collection of assets from taxation. Most wealthy people set up trusts to preserve their assets after they die, and to make them available to their heirs (children or grandchildren) to the maximum extent.

A will is a legal instrument that defines where your property will go when you die. If you don't have a will, then the state where you live (when you die) has a set of laws that will define a will for you (you are said to die "intestate"). The assets of the person who dies are distributed according to the will, or according to law if their is no will, in a process called "probate". The "Probate" process simply makes sure that your assets are distributed according to your will, or according to law if you have no will. If your estate is large enough, your estate will have to pay taxes on the value of your property (called "Estate taxes").

An attorney who specializes in "Elder Law" or "Estate Planning" can tell you whether you need to consider a trust, or a will. If you care how your assets are to be distributed after you die, you need a will. If you don't care, then perhaps you won't mind if the Court figures out how they want to distribute your assets (a judge may decide to sell everything at auction, for example. Your heirs may not have much to say about how your assets are split up, if you don't have a will).

In general, if you don't have much in the way of assets, a Trust won't help you very much. I can't think of anyone who should not have a Will.

This message is provided to assist you in structuring your thoughts when you speak with an attorney about your situation. I am not your attorney, and you are not my client, so this is not legal advice. Legal advice can only be given after a careful interview of the client by the attorney, and I have not had the opportunity to understand the significant issues that I must understand to render legal advice. You should contact an attorney in your state to discuss your situation. That attorney can give you the advice that your situation deserves, after carefully considering the issues that are legally significant in your situation.