If my husband and I have a living trust, why would he also need a separate will?
My husband and I prepared a living trust about 10 years ago with an attorney. I recently discovered that my husband went and had an outside will prepared just for him. Why would a will be needed? How could that affect our living trust? Would you suggest I do anything in particular to make sure I'm legally protected as a spouse in a community property state?
I am not a lawyer, so my answer would need to be verified with a proper attorney qualified in estate planning. That being said, the answer lies in the purpose of each document. The living trust only covers your property that is titled in the trust. For instance, a fully owned vacation home in another state may be titled in the trust to ease estate planning. The key is titling of assets. The will takes care of any estate items that are not titled. For instance, you can't put a beneficiary on your home if it is owned by you. The home usually has to pass through the will (there are exceptions). Think of a will as a way to tell the state you live in that any property that you own is to go to a person you want and there is no other way to do it. The will will not affect any titled property in a living trust. For community property, that is usually for divorce purposes.
Estate Planning can be one of the most important considerations for a family to plan for, particularly when it can synchronize assets with intended legal requests. The simple answer is that the Trust and a Will have different functions and are recognized differently. Case in point, a Trust has a trustor and a trustee versus a Will has a testor and executor. Additionally, there can be supporting documents that can make an Estate Plan more cohesive, such as Powers of Attorney and Living Directives. In my experience, a Last Will and Testament would have the Trust as the beneficiary; the Will gives everything to the Trust, for the purpose of not having to probate. In this case, how is this Will created by the husband in sync with the Trust originally created? These documents should be evaluated by an attorney that specializes in these matters and is up to date with any changes a state may have made.
I advise my clients to review assets and update changes with an attorney at least every 2 years. When dealing with a community state, an attorney that specializes should be consulted. Where this area affects assets, is where a Financial Advisor or financial institution can assist to ensure proper registration and administration. Registration and administration can affect real estate, business holdings, investment accounts, retirement accounts, and bank accounts to name a few. If the husband made changes that limits or removes powers, this could affect how assets are controlled or who is beneficiary. This should be reviewed by an attorney so there are no surprises and result in additional costs to address later.