fall back on when things go sideways. We can avoid or mitigate these complications by being open and having tough conversations. It is best if clients come to meet with me having had some prior conversations or thoughts about what they would like to see in their estate plan. It is important to spend some time with clients asking open-ended questions about their lives and families. The information you glean from those kinds of conversations reveal so much more than you will find on a simple questionnaire. Clients need to be honest with their attorney about their wishes and their concerns. Do not be embarrassed to tell your attorney about family dynamics that could cause conflict. How does a trust vary from a will? What are the key benefits of each? This is something clients ask all the time. There is a pervasive belief in the general public that if you have a will then you are set and do not have to do anything else. That is not true. A will only has power if it has been admitted to probate. So, the biggest difference, from a client’s perspective, is that a will requires probate and a trust does not. All the respective pros and cons of that apply. Of course, that is a simplification, but it is probably the most important thing for my clients. Some other big differences are that a trust has terms which can be applicable during the settlor’s lifetime as well as after death, whereas a will only has terms that apply after death (and, again, after being admitted to probate). For a client with a relatively straightforward estate plan, a will is a good safety net document. You can accomplish so much of what a client wants using named beneficiaries and other non-probate strategies that a will is only for the capture of things that might slip through the net. This keeps the cost of creating your estate plan down and still achieves the goal of getting your remaining assets where you want them after you have passed. If you end up requiring probate, then the will ensures you have someone appointed to oversee your estate and requires that person to make distribution of your assets per your stated wishes. A trust – most commonly a revocable trust – is appropriate for people with a more complex estate. That could be because of the value or nature of their assets, family considerations, or any number of things that make a trust the more appropriate document for clients. A revocable trust has the benefit of being easily amendable (in most cases), being flexible, and allowing you to account for a plethora of potential scenarios in the terms of the trust. A trust does not negate the need for a will to capture those things that might still slip between the cracks of your estate plan, but the will is not the primary driver of your estate plan in this case; the trust is. There is a pervasive belief in the general public that if you have a will then you are set and do not have to do anything else. 76 LAWYERMONTHLYOCTOBER 2022
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