Frequently Asked Questions About Trust & Estate Planning
Why are trusts created?
Trusts are created for a number of reasons but often for:
- Avoiding public disclosure of assets and financial data;
- Consistent and uninterrupted management of assets before and/or after the donor’s death, illness, or disability;
- Preserving assets by preventing the beneficiaries, or their creditors, from gaining direct access to the trust property;
- Reducing income and/or estate taxes; and/or
- Eliminating or lessening costs and delays associated with the probate administration.
What is probate?
When a person dies, all property that does not pass directly to others (such as jointly owned property and life insurance payable to a named beneficiary) is subjected to a legal proceeding called probate under state law. This proceeding takes place under the jurisdiction and supervision of the probate court where the deceased person, who is called the decedent, lived.
The probate procedure involves three major functions.
- The court will determine if the decedent left a valid will.
- The court will appoint a personal representative, an individual or corporate institution, to administer the decendent’s estate.
- The court may or may not supervise the administration of the property subject to probate (depending on instructions in the decedent’s will), which is called the probate estate.
What is a will?
A will is a written instrument that controls the disposition of an individual’s probate property at death. The laws of each state establish the formal requirements for creating a will. In Massachusetts, as a general rule:
- The testator (the person creating the will) must be at least 18 years old
- The testator must be of sound mind
- The will must be written (there are specific, limited exceptions)
- The will must be witnessed by two competent persons in a special manner provided by law. A beneficiary of a will or spouse of a beneficiary should not be a witness, because the beneficiary may lose benefits under the will as a result