One of the key purposes of an estate plan is to facilitate the management and distribution of your assets to your beneficiaries. An estate planning attorney in Tempe at Blake & Pulsifer, PLC can help you understand the similarities and differences between all of your potential options.
When you are devising an estate plan, you are faced with a number of choices. When it comes to your assets, you may choose between a trust and a will. Before you can make this choice, you need to understand how both can play out in practice. Although both of these alternatives have their similarities, there are also key differences that you need to consider.
Learn how our Tempe estate planning lawyers can help you and your family by scheduling an initial consultation with Blake & Pulsifer, PLC. We strive to learn as much as possible about your situation and what is important to you before providing you with customized legal solutions.
Both trusts and wills each require some level of administration from a fiduciary. Although a trustee and a personal representative may perform similar tasks, there are several key differences when it comes to timing, level of oversight and the public availability of proceedings.
Differences Between Trust Administration and Probate
A major difference between trust administration is the level of oversight by a court. When an estate goes through probate, there is oversight by the Court. The personal representative must follow Arizona law that relates to probate. If there is a trust, the trustee is responsible for managing the affairs of the trust, subject to Arizona laws governing trusts.
Because the Court is not typically involved in trust administration, this process can be quicker than probate. The responsibilities of a Trustee and a Personal Representative differ as well. A Trustee owes no duties to creditors of the deceased, but a Personal Representative owes duties of fairness and impartiality to creditors in a probate administration.
Trusts and probate are also different in that proceedings relating to the latter are a matter of public record. The Will, and any proceedings related to it, can be viewed by anyone who searches for the records. Trust administration is typically private, and there may not be any court filings related to the process.
Similarities Between Trust Administration and Probate
A personal representative and a trustee often perform similar tasks. Both will deal with gathering, valuing and potentially selling assets.
Although trust administration and probate may involve different processes, there are some key areas of overlap between the two. In both, there is a person who owes fiduciary duties to others. A personal representative must observe these duties that are the legal right of the beneficiaries to the Will and creditors (or the heirs, when there is no will, and a personal representative is appointed by the Superior Court). When there is a trust, the trustee has similar fiduciary duties, but only to the beneficiaries of the trust.
There is also always a potential for a dispute in both probate and trust administration. In the former, there may be challenges relating to circumstances surrounding the execution of the will (such as lack of capacity or undue influence) or the conduct of the personal representative. A trust can also be challenged on similar grounds.
Contact a Tempe Estate Planning Law Firm
To learn more about how you and your family can benefit from a comprehensive estate plan, reach out to a Tempe attorney at Blake & Pulsifer, PLC. You can schedule an appointment with a lawyer by filling out an online contact form or by calling us today at (480) 838-3000.
At the law firm of Blake & Pulsifer, we believe in making the client the central focus of the representation. We strive to understand our clients’ personal values, goals, and family situations and to provide legal services that support the client’s objectives. We believe this philosophy of client centered lawyering fosters integrity, communication, and long term relationships. More here.