Will vs. Living Trust Pt. 2 - Incapacitation

In our previous article comparing wills and living trusts, we established Probate as the key difference between the two commonly used estate planning documents. A will is subject to the complex, costly, and public court process of Probate. A living trust, on the other hand, can be administered privately (without probate) between beneficiaries, trustees, and a living trust attorney, if needed. To summarize:

“Probate is a lengthy process, especially in California and the busier counties. Some probates take years to go through the court proceedings. A living trust, however, can be administered within months and often with no court costs. In contrast, Probate requires certain costs throughout the process and mandatory statutory legal fees in the end.

Simply put, a will leads to Probate, and a properly established trust avoids it.” 

Aside from foregoing Probate, a living trust can also help avoid court intervention in the case of incapacitation. Incapacitation can occur when a person is unable to provide properly for their own needs or substantially manage their own financial resources. For many, it is unsettling to imagine that a stroke, heart attack, or other unfortunate event can lead to uncertainty and disarray regarding how assets are managed and used for personal care and family support.

Incapacitation with a Will

A will takes effect only at death and thus does not account for incapacitation. If you only have a will and become mentally or physically incapacitated, the court will appoint a conservator to manage your affairs. The court will also routinely monitor your finances and property as well as your personal welfare. 

Incapacitation with a Living Trust

Some who are concerned about the possibility of physical and mental incapacity can decide to establish a power of attorney or a trust to avoid court action. A living trust, for example, can include provisions designating a successor to assume control of financial affairs upon incapacitation. This arrangement is private and usually not monitored by the court.

Protecting Your Estate

To learn more, contact the Law Offices of Belgum, Fry & Van Allen today.