If you have done estate planning, you will have a will or trust or both. If you have not, then when you become deceased you will have died intestate, which is taken from Latin to mean "without a will" (Thanks UH Latin class!). Do you need a will or trust? Can you get by without them? It depends on how much control you want to have in regards to your estate. For example, the more control you want over the administration of your estate, the distribution of your property, cost, or privacy, then the more estate planning you will need.
Your Estate
The word "estate" can be off-putting. It conjures up visions of grandeur such as millionaires with gated homes, furs, diamonds, and jets. Well at least that's what I used to envision when I heard that word, but now I know better. An estate is simply your property or belongings. While it can include diamonds, jets, and the like, it most often does not. The majority of estates are much more modest. You, your neighbor, and that guy down the street has an estate.
No Will
Dying without a will is the ultimate no-brainer. No planning necessary. If you die without a will, probate will be necessary to pay your taxes and debts as well as distribute property that did not automatically pass to a beneficiary by a non-probate mechanism. See "4 Ways to Avoid Probate in Hawaii" for more information about non-probate transfers. The court will appoint someone to administer the estate, which generally entails selling property to pay taxes and debts before finally distributing the remainder of the estate to your heirs at law.
Hawaii intestacy law determines who will receive a share and the size of the share. Even if you promised a certain item to a specific child during your life, it does not mean that the child will receive the item. You don't get a say because you don't have a will. This is Hawaii's back-up plan for those that fail to create a valid will during life. Dying without a will is not recommended because it gives you the least amount of control and probate can be costly, stressful, and lengthy.
Will
Dying with a will does not mean you will avoid probate. Probate is still required to validate a will as well as settle your estate. However, there are many advantages to having a will versus not having one.
Advantage of a Will #1 — Personal Representative Selection
A will allows you to select a personal representative to administer your estate as opposed to the court selecting one for you. Administering an estate is a very important job and can be very demanding. You must put a lot of thought into choosing someone who is willing, capable, and trustworthy. You, not the court, will have a better idea of who is best suited for the task.
Advantage of a Will #2 — Guardian Nomination
A will allows you to nominate a guardian for your minor children instead of the court choosing one in your place. This is an important decision that shouldn't be made by an outside party. The court doesn't know your family dynamics. What if the court chooses someone that you know would not be a good caretaker for your children? You would have no recourse.
Advantage of a Will #3 — Distribution of Property
You get to decide who will inherit your property and who will not. If you think your spouse will inherit everything upon your death, think again. Parents and other family members could get a share. See "How Much Will You Get If Your Spouse Dies Without A Will?" for more information. Even family members you despise or barely know could get their hands on your property.
So if it is important for you to devise all of your property to your spouse, give a cherished item to a specific child, choose who raises your child, or otherwise decide how your property will be distributed, then you need a will. Your estate will still participate in probate, however, a will gives you a level of control that you would not have if you die intestate.
Revocable Living Trust
Advantage of a Revocable Living Trust #1 — Probate Avoidance
Trusts are popular in estate planning because they allow all property held by the trust to avoid probate. A trust can result in substantial savings in terms of cost, time, and aggravation. With the need to pay an attorney, appraisers, accountants, and court fees, probate can cost thousands of dollars. Additionally, probate takes months and even over a year to complete. During this time, probate assets are essentially frozen. On the other hand, a trust allows your successor trustee to immediately begin the process of distributing assets to beneficiaries.
Advantage of a Revocable Living Trust #2 — Privacy
Besides probate avoidance, an added bonus is that a trust is a private document. Since it avoids probate, the trust does not become public record. In contrast, dying with or without a will necessitates probate, which means that these court proceedings are public record. This can lead to public scrutiny of your financial holdings and any family discord.
Advantage of a Revocable Living Trust #3 — Incapacity Protection
Another advantage of a trust is that it eliminates the need for a conservatorship or guardianship proceeding should you become incapacitated. These court proceedings can be costly and potentially embarrassing as they are public record, which means that your medical condition and your financial affairs could be on display. With a trust, your successor trustee will be able to step right in and ensure bills get paid and your affairs are in order.
Still another advantage of a trust is that there are many types of specialty trusts covering a wide range of needs including those aimed at reducing your tax bill or providing for a special needs child, for example.
What is Right for You?
Whether or not you need any kind of estate planning will depend on the amount of control you desire with regard to your estate. On one end of the spectrum is dying without a will, which results in no control. Your estate will bear the cost and burden of probate and you will not have a say regarding the administration or distribution of your estate.
In the middle of the spectrum is dying with a will, which gives you a moderate level of control. You can choose the administrator of your estate, the guardian for your minor children, and the people who will receive your property including the amount.
At the end of the spectrum is dying with a trust, which affords a high level of control. You can avoid the delay, cost, and stress of probate. A trust also provides privacy and incapacity protection. Specialty trusts, which are more complex than a general probate-avoidance trust can also do a number of useful things such as offer creditor protection, for example.
Contact Your Experienced Honolulu Estate Planning Law Firm
While trusts are very popular, they cost more upfront to create than a will because trusts are inherently more complex. The good news is that the benefits (i.e. avoidance of probate cost, time, & stress) most always outweigh the upfront cost. In fact, the upfront cost of a general probate-avoidance trust is typically much less than the cost of probate.
However, if it means that you will have no estate planning because you are contemplating the higher fee, it is a good idea to at least have a will package (will, health care directive, & power of attorney) completed. It provides a medium level of control and protection, which is not bad considering that you had nothing to begin with. Assuming you are in good health, in a few years should the need for a trust arise, you can create one then. Some planning is better than no planning. Just in case. Contact us today to get started.
This article is a service of the Law Office of Keoni Souza, LLC, an estate planning law firm in Honolulu, Hawaii. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Family Wealth Planning Session, ™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by contacting our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.
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