Will or Trust What is the difference between a ”Living Will” and a ”Living…

Will or Trust
What is the difference between a ”Living Will” and a ”Living Trust?”

How much strength does a ”Contestment Clause” carry in a Will or Trust?

Can the requisite Power of Attorneys be attached to a Will or Trust?

3 thoughts on “Will or Trust What is the difference between a ”Living Will” and a ”Living…

  1. Re: Will or Trust
    A “living will” is not a Last Will and Testament, it is an “advance medical directive” which tells hospitals and doctors what care and treatment that you want to receive and what you do NOT want to receive in the event that you are determined in be in a persistent vegetative state or in a terminal condition. There are a variety of actions that you can request or list on your “I don’t want” list.

    A “living trust” is a nickname for a Revocable Trust, a trust that can be amended or revoked at any time by the creators of the trust agreement. The living trust is often promoted as something that everyone should have to avoid probate. I advise my clients that this is not the reason to recommend a trust, although it is true that assets held in trust will not be included in a probate estate. If ALL of the decedent’s assets are conveyed to the trust, then there are no assets to probate. Experience tells us that 60% of the people who create living trusts do not put anything in the trust (and therefore, they have defeated the purposes for having a trust). The reason that I recommend a trust to my clients is that it provides the best legal regime to protect the creators of the trust during their lifetimes and thereafter, their families. It will also provide a mechanism to reduce estate taxes if there is a taxable estate.

    Last Wills often contain a clause that says if anyone contests the Will, then that person is disinherited from receiving anything under the Will. I do not remember seeing such a clause in a trust agreement. Recent cases have shown that a Will contest, brought for good and fair reasons, will not cause a person to be disinherited, even if the Will contest fails. If the contest is brought without good cause, then the person may indeed be disinherited.

    I don’t know what you mean by “requisite Power of Attorneys.” I believe that it is NOT good practice to put a POA in a Will or trust. A power of attorney is an agency agreement, and depending upon the purpose of the POA and the authority you are giving to the agent, the POA should be a separate document, properly drafted according to state law, and executed with the fomality requiredby law.

    Donald Scher
    Donald T. Scher & Associates, P.C.
    2200 E. Camelback Rd., #102
    Phoenix, AZ 85255

  2. Re: Will or Trust
    Thank you for your inquiry.

    A Living Will is a document in which a person expresses his/her wishes regarding life support in the event of an irreversible coma or a persistent vegetative state.

    A Living Trust is a vehicle that holds a person’s assets during their lifetime, and distributes the assets upon their death. Some of the benefits of a proper Living Trust are probate avoidance, privacy, protection in the event of disability, and protection from estate taxes.

    A no-contest clause is generally enforceable, as long as you aren’t trying to disinherit your spouse or your minor children.

    Powers of attorney are separate documents from wills and trusts. They are only effective during your lifetime (they expire upon your death). A durable general power of attorney nominates an Agent to make financial decisions on your behalf. A healthcare power of attorney nominates an Agent to make medical decisions on your behalf.

    I offer a free initial consultation, so please contact my office to discuss your specific situation.

    In addition, please feel free to go to http://www.evliving.com, legal planning, for several articles that I have written regarding estate planning issues.

    Monica Donaldson
    (480) 792-9770

    Monica Donaldson Stewart
    Donaldson Stewart, P.C.
    3100 West Ray Road, Suite 115
    Chandler, AZ 85226

  3. Re: Will or Trust
    A Living Will is a “right to die” document which states no extraordinary measures are to be used to sustain one’s life. This is the document that would have solved the Terry Shiavo problem had she had one. A Living Trust is a trust during the life of the maker of the trust which holds the maker’s assets until death. It is designed to avoid probate. A “contestment” clause disinherits those who contest a will or other disposition, and they are enforceable except as against spouses in community property states. POA’s can be attached to anything.

    Charles Aspinwall
    Charles S. Aspinwall, J.D., LLC
    PO Bx 984
    Los Lunas, NM 87031-0984

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