Q: I read your column all the time and am getting such an education! I know you like using trusts for estate planning so I took my mom to an attorney to have one done. To my surprise, the attorney said that he would not do a trust for my mom because of her age and that a will would be more appropriate. Are there certain ages where a will makes more sense than a trust? I’m confused.
A: The age of the person looking to make an estate plan wouldn’t necessarily influence an attorney’s recommendation regarding the use of a trust or a will but your mom’s capacity might.
In estate planning, we can use a simple will to distribute assets at death or set up a living trust which will pass our assets to beneficiaries and could also be helpful if we become incapacitated during life. Wills generally require probate and trusts usually avoid the costs and time delays of a probate.
Do you think your mother has any loss of cognition? The fact that the attorney suggested a will and not a trust may mean he has reservations about your mom’s mental capacity. To execute a will, the signer, in this case your mother, needs to meet four benchmarks: she must understand the nature and extent of her “bounty,” (a fancy word for estate assets); she needs to recognize who are the natural objects of her bounty (those who would normally inherit – like children); third, have the “intention” of signing a document that will pass her assets to heirs at the time of her death, and; finally, understand all three of these criteria at the time she signs the will.
Trust agreements, power of attorney and deeds are all documents that require the signer have “requisite capacity,” meaning they must reasonably understand the nature, extent, character and effect of the documents. If you have read a trust agreement, you know they can be dense and complex so these documents naturally require full mental capacity.
It is not necessarily bad that the attorney recommended a will and not a trust. I like trusts because they avoid probate and are helpful if the signer becomes incapacitated, but a will that expresses your mother’s wishes will at least make sure her estate is distributed the way she wants it distributed.
One more alternative to cremation
Jo writes: I enjoy reading your column and recently made a decision regarding my after-death choice that you may have covered but wanted to share as it relates to your recent discussions of cremation. I was considering cremation as the most inexpensive option and because I have no religious preference. I met a friend whose mother recently passed and she mentioned that her mother had chosen to have her body donated to Stanford University. After researching at anatomy.stanford.edu/donate, I decided that this is the best option for me. When I discussed this with my son, an Emergency/Palliative Care physician, he shared with me that this option would be a great gift for future doctors and scientists. It was easy by downloading a simple form and having two witnesses. They just mailed me my Registered Body Donor Card! For me this was a win/win decision.
Liza Horvath has over 30 years’ experience in the estate planning and trust fields and is the president of Monterey Trust Management, a financial and trust management company. This is not intended to be legal or tax advice. Questions? Email liza@montereytrust.com or call (831)646-5262.
