How Is A Trust Created?
Creation of a special needs trust, we know we need to use one, everybody with me on that? Everybody feels like yes, a special needs trust is something we need to consider? How should it be created? There are two ways. One is through a will and the other is through what is called a intervivous trust, or a trust that is in existence when it is created, a testamentary trust is at a trust that will be created when your will is probated. We’re going to talk about some of the downsides to that. A will is simply a written document that is signed in a manner prescribed by law, wills are very formal creatures which disposes of property upon death. In Georgia, if you don’t follow the formal procedures you do not have a will. In some states you can just hand write your own will, sign and date it, and it’s a will. Not so in Georgia. Usually it’s along the east coast where the more formal requirements you have are. The further west you go, the less requirements you have. Any one want to venture at a guess as to why that’s the case? As the country was developing, guess where all the lawyers were? They were along the east coast, very rarely do you ever see a movie about a lawyer moving west. Usually, they’re taking the train. So, people are already there, it’s already civilized you rarely ever see a lawyer on horseback riding out into the plains to set up shop. Lawyers need people, without people, they’d have no customers. Along the east coast is where you see the more formal requirements, further west you go they had to be less formal because weren’t lawyers out there. you had to be able to handwrite your own will and that law just simply carried over to modern day. A will nominates people who should be responsible for wrapping up your affairs. We commonly refer to this as an executor or an executrix. The law is trying to get away from those old words and use some the word “Personal Representative” but most people still understand executor. In the will you also nominate guardians for your children, with a change to Georgia law two years ago, you can now nominate guardians for your adult children as well. Used to be you couldn’t do that, now you can and that’s important especially when you have special needs heirs. You may have a child that when they are twenty, thirty, forty, who will need to have a guardian named for them and you might want to have a say so in who that guardian might be. The court still has to be the one who does it but this puts whoever you name at the top of the list of who the court is going to consider. It is helpful. In your will you determine how and when your heirs are going to receive the property you leave them. You can do some tax planning in your will as well.
Nadler Biernath LLC assists clients in the Atlanta, Georgia area and throughout Georgia including Kennesaw, Alpharetta, Roswell, Marietta, Buckhead, Johns Creek, Duluth, East Cobb and Dunwoody.