Posted on Wednesday, June 18, 2025
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by AMAC, D.J. Wilson
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People often describe death as the end. American author and Civil War veteran Ambrose Bierce begged to differ, stating, “Death is not the end. There remains litigation over the estate.” Modern day experts are likely to agree as death can lead to complications over property. Creating a will or trust is a reliable way to plan what happens to what you own after your death. These vital documents specify your final wishes and how you want critical assets and property to be distributed to a spouse, dependents, or other significant people. Let’s learn more.
The purpose of a will
A will (or last will and testament) is a legal document that allows people to clearly define how they want their property, including money, real estate and other valuables to be divided among beneficiaries (heirs). People writing wills can appoint an executor (personal representative) to manage their estate and ensure the will is carried out in accordance with the deceased’s wishes. A will can include a provision for alternative beneficiaries or executors in case one’s primary choices are unable to fulfill their roles. Wills allow people with minor children to designate a guardian to care for them and make appropriate choices about their upbringing. Wills have numerous other benefits. Not only do they set forth a plan of what’s to happen, but they also streamline the probate process, which is the legal process of validating a will after a person’s death and overseeing the distribution of their assets.
Creating a trust
A trust is a legal arrangement where one person gives property to another to manage for the benefit of someone else. It is a broad term as different types of legal arrangements exist. A testamentary trust (created in a will) and a living trust (set up while the grantor is alive) are examples of different types of trusts. There are specific reasons why a type of trust can be a good choice over a will, such as for estate tax planning, asset protection, and privacy concerns. While a will outlines one’s wishes and asset distribution, it may not provide the same level of control or flexibility as a trust. Both wills and trusts are legal documents that must be drafted in accordance with state laws. Wills direct what happens to your property after death and trusts can be opened while you’re alive and continue after your death. It’s important to talk to a legal expert to determine which is right for you and to understand the tax implications of your decision.
Basic terminology
The creator of a trust is called the grantor, and they determine how assets will be allocated. The appointed party responsible for administration of the property is the trustee. The beneficiary is the party receiving the benefits of the trust. Trusts are often set up to preserve wealth and assets for the benefit of future descendants. These legal entities contain money, bank accounts, stocks, property, investments and more. Per Trust and Will, “Trusts can offer financial protection, tax benefits, and even long-term support to loved ones – making them an invaluable tool in Estate Planning.” Setting up a trust can likely help avoid probate costs and potentially reduce estate taxes.
An unsettling notion
The idea of drafting a will or trust is seemingly scary – because it forces people to think about their own death. However, it is a necessary and wise step for those with assets. Establishing a will or trust is particularly important for senior citizens for numerous reasons. Primarily, most seniors have assets that need protection. Living trusts for seniors can be an important estate planning tool. A living trust, also known as a revocable trust, is a legal document that allows people to manage and distribute assets during their lifetime and after their death. This can provide for the management of assets if people become incapacitated. Talk to a lawyer to determine your best course of action.
Protection for seniors
Per VJ Russo Law, “Unfortunately, seniors are prime targets for financial abuse and scams. Sadly, the elderly are often taken advantage of by strangers – and sometimes even their own family members. That’s why it’s crucial that planning is in place to help seniors protect themselves and their assets.” Additionally, with age, assets may become more challenging to personally manage, and decision-making may become tougher. Thus, it’s best to legally establish a plan via a will or trust at the earliest opportunity. Note that wills and trusts may be legally amended, modified and updated as seen fit by the testator (the owner/signer of the will).
Planning ahead
Younger people aged 18 and up with little to no assets may feel it’s not all that important to create long-term plans. However, as a person begins to grow assets, for example own a primary residence, establish savings, or get a life insurance policy, it’s necessary to designate where those assets should go upon one’s death. Having ultimate wishes defined in legal terms makes life easier for the survivors. Note that in many states, wills do not supersede spousal rights, nor do they typically govern the disposition of property controlled by beneficiary designations or by titling, so these pass outside the probate estate. Per American Bar, “Such assets include property titled in joint names with rights of survivorship, payable on death accounts, life insurance, retirement plans and accounts, and employee death benefits that automatically pass at death to another person.”
Making it legal
Wills can be created for free or inexpensively via online tools or DIY kits. However, they must meet state law’s requirements. To avoid issues, it is highly recommended that people hire an attorney who specializes in estate planning to draft a will or trust. The rate they charge is typically based on time and complexity. Trusts are usually more complex than wills and therefore carry administration fees. They may possibly include annual tax preparation and trustee fees. Costs aside, the benefits of establishing a legitimate will or trust are worthwhile.
What? No will?
If a person dies without a will (dying “intestate”), their assets will be distributed according to their state’s intestate succession laws that determine who inherits the property. Laws typically favor surviving spouses, children and other relatives per legal hierarchy. If a person has no will, the court will appoint an administrator to oversee everything. The probate process, which involves settling the estate, can be more involved and is likely subject to higher costs. A person without a will loses control over who inherits the assets and how they are distributed. This can lead to potential disputes and higher costs.
Leaving a legacy
Per Antonelli & Antonelli Attorneys at Law, “The purpose of drafting a last will and testament is primarily to control where your assets go after you die. Who should get your money? Who should get your house? Who shouldn’t get anything? A last will must be probated in order to have affect.” Essentially, people with assets who die without a will or trust in place relinquish control over distribution of assets. They are essentially putting their trust in state laws and the court system to sort everything out. Loved ones have a hard enough time when someone they love passes. Not having a will or trust complicates matters. Therefore, it’s best to see a lawyer so that the right people end up with your property, bank account, insurance policy, investments and more.
Disclosure: This article is for general informational purposes only and is not intended as a legal resource or substitute for professional advice. Please see your attorney for legal guidance.
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