Legal Blog

The Weekly Scenario: Wills vs Trusts

Question: Why do I need a legal document like a Will to govern the disposition of my estate? Could I just leave everything to someone I trust and tell them what to do with my property?

Answer: Assuming the person you wish to carry out your plan doesn’t get second thoughts after your death or is even still around after your death, there are a number of problems with this approach, even if there is a testimony of the testator evidencing his intent.

One problem is that in Will cases that have gone to trial, the court will often exclude testimony as hearsay, even if that very testimony is unchallenged.

In those cases where there is property left to an individual with the intent by the testator that those assets be used for another’s care and support (not for the support of the individual receiving those assets), is going to be difficult for a court to interpret the creation of any sort of constructive trust.

The better approach and one more likely to work is for the testator to be clear of his desires in his Will by setting up a testamentary trust and provide clear guidance to the executors of the estate as to how the assets should be administered and distributed.

Comment: Your best bet to be sure your wishes are correctly carried out is to create a Will so that all your intentions are set forth within the four corners of the document. Anything else told to others may never be heard.



As always, if you have any questions or would like to learn more, please contact me.


Steve Shane Casual Small | 301.575.0313

Steve Shane provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts and charitable trust. He is also experienced with drafting documents for business planning, the incorporation and application for exemption for Private Foundations and the administration of decedents’ estates.



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