Breshears Law

Wills and Trusts are vastly different. Knowing those differences can help you make the best choice for you and your family. Very briefly, here just three differences. 1. CONTROL. A Will does not control any property until (a) the maker dies, (b) the Will is filed with a court, and (b) a judge approves it. A Trust, by contrast, is effective the day you sign it and protects property owned by the Trust from the time the property is transferred into it until your final instructions are carried out. 2. PUBLIC VS PRIVATE. Wills must go through a legal process called "probate", a very public process. Anyone can know who your heirs are and what they inherited. Trusts are PRIVATE, so assets held in Trust pass privately, under your instruction, without disclosure to the public. 3. PROTECTION. If you are disabled, a JUDGE may oversee your property in (an expensive) guardianship. Trusts are unaffected by disability, meaning your property is protected for you by people YOU APPOINTED.

Here is my rule of thumb. If you own any property and have children, grandchildren, other family or charitable causes you want to benefit, ask yourself these questions: 1. Do I have a Will or a Trust that gives clear instructions on how my property is to be used and distributed? 2. Do I have a general power of attorney appointing someone to manage my property in case I am unable to do so? 3. Do I have a medical power of attorney that will appoint someone I trust to make medical decisions for me, in case I am not able to do so? 4. Were my documents prepared by a lawyer who focuses the majority of his practice on Wills, Trusts, and other estate planning matters? 5. Have I reviewed all of these documents with an estate planning attorney in the last 3 years? If your answer to any one of these questions is "No", you should call an estate planning attorney now. Joe Breshears is an estate planning attorney in Fort Worth, Texas.

A trust is a legally-recognized relationship between three people, for the purpose of holding, managing, and then distributing property. The three parties to the trust are: 1. The creator of the trust (called the Grantor, Trustor, Maker, or Trust-Maker), who determines the instructions for how trust property is to be managed; 2. The trustee, who agrees to hold title to the property and the legal duty to carry out the grantor's instructions; and 3. The beneficiary, the party who benefits from the management of the trust property. The designation "living trust" simply means that the trust was established during the trust maker's lifetime, not in a will that goes into effect after the maker's death (called a "testamentary trust"). Trusts are powerful planning tools that can avoid probate, prevent the necessity of guardianships, and protect assets from predators. If you want more information about how trusts might work for you, just call us at (817) 500-0155.

Probate is the legal process of transferring control or ownership of assets for those people who have chosen to live by the "government's rules". For example, for someone who dies without a Will or a Trust, the state of Texas has adopted rules that determine who inherits that person's property. The probate process for determining who the deceased person's legal heirs will be can be very complicated and expensive. For people who die and leave a valid Will, a different probate process is required. The Will must be submitted to a probate judge and approved, an executor appointed by the court, and then a number of other rules protecting the rights of beneficiaries and creditors come into play. If a person is disabled during their lifetime, and own property in their own name, it may be necessary to initiate a third type of probate process, called guardianship. In a guardianship proceeding, a judge determines if the person is disabled and, if they are, appoints a guardian to protect them.

An effective estate plan requires (1) Control of the Process. Clear instructions directing what to do and how to do it at each stage of your life, and (2) Proper Asset Ownership. I have seen perfect legal documents bypassed completely because of the way certain assets were owned. Certain assets - like bank accounts, brokerage accounts, life insurance policies, and annuities to name a few - are passed to the person or persons designated as the beneficiary of those assets. That beneficiary designation is a contract between you and your bank, brokerage firm, or life insurance company, and it is unaffected by the provisions of your Will or Trust. The beneficiary designation controls, not the terms of even the best Will or Trust. I have seen terrible, unintended discord in families that results when a mom or dad passed away and their Will said everything was to be divided equally - but one child was named the sole beneficiary of a very valuable asset.

Estate planning is simply the process of creating a set of legal instructions designed to do three things: 1. Control your property while you are alive and well, 2. Protect your property for you and your loved ones if you become disabled and (at your death), 3. Give what you have to WHO you want, WHEN you want, the WAY you want; all without unnecessary cost or delay.