Estate Planning, Probate & Elder Law Attorneys

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» Wills with Testamentary Trusts

I usually talk about estate planning in terms of two different approaches:

Simple: having a simple Will, where you give away all of your property outright

vs.

More involved: having what's known as a pourover Will and a separate living trust. You give your property away in your living trust -- you leave it to a trustee, who holds it for one or more beneficiaries

But there's also a middle way, which involves having only a Will, but incorporating trusts into that Will. This is known as having a Will with a testamentary trust. What's the drawback to this approach, and why isn't it more popular?

Well, when I talk about the advantages of a living trust, I address 5 of them in particular:

1. Probate avoidance
2. Control
3. Creditor protection for beneficiaries
4. Privacy
5. Estate tax minimization

If you create trusts under your Will rather in a separate document, those trusts can't be funded during your life (since your Will has no effect until death). As a result, you will need a probate. Your beneficiaries also don't get privacy, since the trust information is all located in your Will, which is a public document. But the other three advantages still exist.

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» Will Contests and Philip Roth's The Ghost Writer

I recently finished reading Philip Roth's The Ghost Writer, which is the first book in his Zuckerman trilogy (or trilogy and epilogue, as I guess it's now known, since it contains four books and Roth evidently doesn't like the word "quartet"). It's a short but engaging work about a young novelist (Nathan Zuckerman) who pays a visit to a very well-respected older novelist (E.I. Lonoff).

Interestingly enough, one of the central conflicts of the book involves a fight between Zuckerman and his father over one of Zuckerman's short stories, which focuses on a will contest. According to Zuckerman, the story was based on the following facts:

A great-aunt of mine, Meema Chaya, had left for the education of two fatherless grandsons the pot of money she had diligently hoarded away as a seamstress to Newark's upper crust. When Essie, the widowed mother of the twin boys, attempted to invade the trust to send them from college to medical school, her younger brother, Sidney, who was to inherit the money remaining in Meema Chaya's estate upon conclusion of the boys' higher education, had sued to stop her.

Zuckerman's father objects to the story, on the grounds that it airs the family's dirty laundry and (more importantly) portrays Jews in an unfavorable light.

Not to take the fun out of the novel, but the whole fight over Meema Chaya's estate could have been avoided if she had clearly defined "education" to include (or exclude) graduate and/or professional school.