estate planning wills and trusts

How To Help Your Parents With Their Estate Planning The Right Way

Jill Santiago 0 Comment

Let’s be real, talking about estate planning with your parents can be…awkward. But it’s also super important. You want to make sure they’re taken care of and that their wishes are honored, right? So, how do you navigate this tricky topic? Don’t worry, I’ve got you covered. Here’s a down-to-earth guide to help your parents with their estate plan:

First things first: Family Huddle!

One of the biggest problems I see with estate issues is when family members feel blindsided. So, gather the troops! Obviously, your parents need to be front and center, but if possible, get your siblings in on the conversation too. Laying all the cards on the table early on can prevent a ton of drama later.

Common Pitfall: Estate plans can be challenged based on “undue influence.” Family members who are not a part of the planning discussion may feel they were cut out, or treated unfairly, and may lay blame on the one who assisted with the planning. Including your siblings in the conversation can help avoid this catastrophe.

 

Your Parents Need to Lead the Way

I often chat with adult children who want to set up estate plans for their parents. And while it’s awesome that you want to help, remember this: the core conversation needs to happen directly between the attorney and your parents. 

They’re the clients, and they need to be the ones making the decisions. Also, they’ve got to be mentally sharp enough to understand what they’re signing. I know, it sounds harsh, but if there’s any doubt about their capacity, things get really complicated, really fast. Trust me, you want to avoid that.

Common Pitfall: Estate plans are also challenged based on lack of capacity. Evidence that a person was not competent at the time they made the decisions about their estate plan can lead to costly court cases, which could result in wiping out the estate plan completely. Allowing neutral parties to determine your parents are of sound mind at the time they sign their estate planning documents is the best way to avoid these challenges.

On more than one occasion, I have had to ask family members to step out of our conference room so I can speak to their parents about their wishes and determine their capacity to make an estate plan. On more than one occasion, my prospective clients have told me they feel they are uncomfortable with the process, or are feeling pressured into making decisions they were not comfortable making. When helping your parents, or any relative, with estate planning, approach the conversation with empathy and respect. Don’t pressure them, rather, offer guidance, share helpful information and let them know you are there to support them at their own pace.

 

Respect Their Choices (Even if You Don’t Like Them)

You can’t force your parents to do anything. It’s their life, their assets, and their decisions. If they decide not to create an estate plan, even after you’ve shared your concerns, well, that’s their prerogative. You’ve done what you can.

 

Call in the Pros

These conversations can be tough, but they’re so worth it for everyone’s peace of mind. By gently guiding your parents, making sure their documents are up to date, and getting help from an experienced estate planning attorney, you’re helping them make choices that reflect what they truly want. At the end of the day, estate planning is about more than just money—it’s about making sure your parents’ values and intentions are respected, now and down the road.

estate planning wills and trusts Probate

Wills Vs. Trusts Compared Side By Side

Jill Santiago 0 Comment

Wills and trusts the two most common tools used in estate planning to ensure your assets are distributed according to your wishes. While both serve the fundamental purpose of passing on wealth and protecting your loved ones, these documents function in different ways and offer distinct advantages. Understanding the key differences—such as probate avoidance, privacy, control, and flexibility—can help you determine which option best suits your needs. Both a will and a trust are essential components of a well crafted estate plan. So, let’s break down wills and trusts side by side to help you make an informed decision about your estate plan.

Wills

Trusts
Subject to probate court approval
A common misconception that creating a will avoids probate. This is false. If there are assets in your estate at the time of your death, whether you have a will or not, your estate must go through the probate process. 		Avoids probate if set up correctly
Assets transferred into your trust during your lifetime are not subject to the probate process.
Only take effect after death
You can change your will or make a new will anytime during your life, but only as long as you are competent to do so. 		Takes effect during the creator’s lifetime
A living trust takes effect during your lifetime, allowing you to manage and control the assets while you are alive. Unlike a will, which only becomes effective after death, a living trust enables seamless management, protection, and eventual distribution of assets without the need for probate.
Names the person who will be in charge of your estate when you die
Your “Personal Representative” (formerly known as an Executor or Executrix) is the person who will be responsible for the proper administration of your estate.		 Avoids guardianship or conservatorship proceedings if you become incapacitated
Assets in a trust are managed by a trustee. As long as you are living and able to, you will continue to manage your assets. But if you ever become incapacitated, the person you name as a successor trustee will step up and manage the assets on your behalf, so there is no need to rely on a power of attorney or go through living probate.
Provides for distribution of your assets to your chosen beneficiaries
A will specifies which assets are to be distributed to whom. It is your Personal Representative’s duty to ensure these distributions are made in accordance with your will.		 Provides for distribution of your assets to your chosen beneficiaries
Trusts are very flexible when it comes to making distributions to your beneficiaries, whether you have one beneficiary or 100 beneficiaries. A trust will allow you to have complete control over who receives your assets and how they receive them, even after you are gone.
Can be used to exclude persons from inheriting your assets
You may intentionally omit heirs from your will. However, State laws often provide protections allowing surviving spouses to receive a share of your estate, even if they are intentionally omitted.		 Can be used to exclude persons from inheriting your assets
Like a will, you can intentionally omit any heirs at law as beneficiary of your trust. Unlike a will, that heir is not entitled to any information. Only those beneficiaries who are receiving distributions under the trust are entitled to a copy of the document
Subject to challenges in probate court
Beneficiaries and omitted heirs could challenge your will if they disagree with the provisions you have made. Will contests are costly and time consuming.		 Cannot be challenged in probate court
Legal issues pertaining to trusts must be brought before the Superior Court, as probate courts do not have jurisdiction over trust issues
Does not provide any protection for assets
A will cannot protect your assets from creditors or nursing home costs.		 Certain types of trusts can protect your assets
Only irrevocable trusts will protect your assets from being depleted to pay your creditors or for nursing home costs, if they are set up correctly
Typically less expensive to prepare than a living trust (roughly half the cost)
Wills are simpler documents to prepare and require less work for your attorney. However, this should be weighed against the potential costs of probating your estate and/or living probate proceedings such as guardianship or conservatorship.		 Typically costs more to create than a will (roughly twice to price)
Trusts are complicated legal instruments and involve far more than just drafting your documents. However, this cost should be weighed against potential probate-related costs.

Whether a will or a trust will work best for you depends on your individual circumstances, goals, and the level of control you want over your estate. Wills offer a straightforward way to distribute assets, are usually less expensive, but require probate. Trusts on the other hand provide greater flexibility, privacy and avoid probate court proceedings, but involve more upfront effort and cost.