Hello and welcome to trusted. This is the podcast where we talk about everything that involves trusting others, especially attorneys. And I am your host, Blake Johnson. Today we are going to be talking about a trust versus a will and when you use each of them. So you get started. Let’s talk about what a will is. A will is a document that you write that is valid only upon your death. So until you pass away the document never has any validity, can’t be enforced by any means. Um, so it’s referred to as a dead document or a postponed document because you cannot, it does not have any effect until the person who writes it dies. Now there’s a couple of different kinds. Um, there’s really only one kind of will, but there’s different ways of doing it. Uh, the two different ways are you can do a formal will that’s drafted by an attorney and meets the requirements of your state for what a valid will is Trust Attorney Las Vegas.
So some of them required two witnesses, some require a notary or some require both two witnesses and a notary. Um, so you need to know which, what your state requires. There’s usually a few other things that are required in there. Usually want to name who a personal representative or the executor is. Uh, you want to, um, you know, specify who gets the stuff. That’s what, what the whole purpose of the will is. And um, you know, there may be other requirements in there. Sometimes you put in there, you know, if you want to be buried or cremated. Um, and probably the most important one is if you have small kids, you want to list who is going to be the guardian of those minor children if you were to pass away before they turn 18. And that’s um, you know, one of the main reasons that we do a will, uh, for our clients even if they are doing other estate planning documents because we want to make sure that those, those kids are going to the right people Trust Attorney Las Vegas.
And we usually put one or two backups because we don’t want the court to make that decision. The other type of will that you can execute is called a holographic will. Not every state allows the holographic will, but most do. And what that is, is it means that it’s 100% in your own handwriting. It’s dated at the top and signed at the bottom. And that’s considered a valid will and in many states, so check, you know, do a quick Google search to make sure that your state does allow for the estate planning tool of a holographic will. Or if you’re in Louisiana, it’s called an old graphic, will somehow they lost that h. Uh, but that’s, that’s what it is. So day the top side of the bottom 100% and your handling, you can’t just type it up and then sign it. You have to write the whole thing in your handwriting.
That’s the, that’s what makes it valid as you did it in your own handwriting. Now when we go to the probate court, usually what we have to do is get a certificate of two different people that say, oh, Yep, I have known the person I know their handwriting then. And I believe that to be their handwriting. So it does provide, make it a little bit more difficult. Um, but not too bad as far as, um, you know, providing the validity of the will. And once again, you are going to name who’s the executor or the personal representative of the will and you know who the guardian of the minor kids are and who’s going to get the stuff when you pass away. Now we contrast that with a trust and a trust is a living document, meaning that it’s a contract that you sign now that has validity from the second that you sign it.
So it’s full in force. And typically we are do what’s called a living trust Trust Attorney Las Vegas. And a living trust means that you can amend it at any time. It’s a revokable trust and while you’re living, you’re the trustees, you have full access to the money. You’re the trust store, meaning you set it up and you’re also the beneficiary. So you can benefit from that trust, which allows you to, you know, to, to spend the money on how you want to spend it. And this living trust, uh, lays out terms similar to a will. Instead of being a personal representative or executor, we call the person who takes over. If you pass away, uh, the successor trustee because the trustee is the one who’s kind of the manager of the trust and uh, you know, put one or two backups there. Uh, we also within the trust specify what’s going to happen to the trust.
If you become incapacitated and when you pass away who gets the money, how it’s distributed, Trust Attorney Las Vegas um, you know, any restrictions that you want to put on it that way. Now, either one, the will or the trust, you can edit it anytime because the will doesn’t have valid until you die. So you can make a change there. The, the change to a will is called a codicil and a change to a trust is called an amendment. And you’re saying, I’m executing this first amendment to the trust. We’re going to take out this section 6.01 and replace it with this version of that same section. And that changes, you know, whatever portion of the trust you wanted to change. Um, you can also make the trust era vocable so you could set it up originally as a living trust or a vote revokable trust. And as you get older you decide, hey, you know, I’m going to lock this in place and get it out of my name so, um, I can qualify for longterm care through Medicaid or, or the veterans benefits or something like that.
And so your amendment makes it an irrevocable trust, meaning that it can’t be changed once it’s set up and there’s other requirements that have to be made to make sure it qualifies for those what you’re trying to accomplish. Um, but that is the flexibility of it. Otherwise the trust just becomes irrevocable upon your death. And then the trustee successor trustee has to execute it according to what the way that you wanted them to. And um, if there is no, let’s say all your successor trustees you’ve listed are past or they refuse to act as trustee. What happens in, well, the majority of the adult beneficiaries vote too. Um, well all of them vote. And then a majority vote would decide who is going to be the trustee of the trust. And then they would execute it according to what the trust says. And the trustee has a fiduciary duty to carry out the trust in the way that the trust is written Trust Attorney Las Vegas.
So it’s a very high standard, you know, just like a bank as a fiduciary for your bank account, your savings account and checking account because you put it in there and you’re trusting them to do the right thing with it. And, um, you know, it’s the same way with the trust. You need to make sure that you, uh, have that fiduciary or that they act in a fiduciary duty. They do what they’re supposed to do and carry out the trust according to your terms. So it’s a quick one today that that is the difference between a will and trust and in, um, you know Trust Attorney Las Vegas, really the biggest difference is that a trust avoids probate, whereas a will just ensures that you go through probate court