Will

Will based planning is often thought of as a stop gap measure. It is generally not considered comprehensive planning. Often will based planning is used because people think they can not afford comprehensive Trust based planning. Too often a cheap will (or a cheap trust for that matter) will have unintended and sometimes devastating consequences. If you choose to use will based planning it is very important that you are well counseled by an attorney who will find out what your goals are and design the plan to achieve those goals. If will based planning is done properly it will generally not be inexpensive.

Will - The "Last Will" is a set of written instructions to the probate court: (1) requesting that the estate of the decedent be admitted into the probate court's jurisdiction; (2) requesting that the court accept and appoint the decedent's nominated personal representative (or executor); and (3) requesting that the court validate and approve the decedent's proposed distribution of assets.

Will based planning guarantees that your estate will have to go through probate.

Will based planning may or may not include protection for your beneficiaries from creditors, predators, and taxes.

Will based planning when properly done should cost as much as Trust based planning. However, there are some attorneys who will charge very little to do your will based planning hoping to get the probate proceeds upon your death. In fact when I first started practicing in this area of law an attorney suggested to me that I find all the little old ladies I could and give them wills for free so I could get the probate estate. While providing an inexpensive service at the time, the attorneys offering these cheap wills can not always afford to spend the time with you that is necessary to make sure they are providing you with a tool that will meet your goals.

Probate - a lawsuit that you file against yourself with your own money for the protection of your disgruntled heirs and creditors. (author Peter Parenti)

1.	The One Advantage of a Will
	a.	A will forces probate
	b.	Where there is a particularly dysfunctional family, filled with considerable rancor and mistrust, the protection of probate, surety bonds, and court accountings may protect both the estate fiduciaries and beneficiaries – and the additional cost of this oversight might be appropriate.
	c.	When you choose to avoid probate by using comprehensive Trust based planning, you may deal with family issues by using a corporate fiduciary as your Trustee. Then you will be able to build in whatever controls, reporting, or flexibility you want and none of your family members or friends will have to be responsible for saying "NO" to your other beneficiaries.
2.	Probate Problems
	a.	Multiple Jurisdictions - Probate must take place in each jurisdiction in which there is real estate. Generally a probate case is opened in the jurisdiction of the decedent's last residence first. The additional probate proceedings in other jurisdictions are referred to as "ancillary probate."
	b.	If you avoid probate by using Trust Based Planning, these properties will avoid probate altogether.
	c.	Privacy Concerns
		i.	Probate generally requires an inventory to be filed.
		ii.	Both the inventory and the Last Will and Testament are public records.
		iii.	You may think that it is silly to worry about someone combing through court documents to find your information, but there are many people who will attempt to take advantage of the distressed circumstances that your family will find themselves in when you die. In fact, on the 21st day of December 2007 I saw my first infomercial for a package called, "Probate Profits." It teaches people to find out about your assets and purchase them at a fraction of their value.
		iv.	If you avoid probate by using Trust based planning, you will be able to keep all of your assets and their values private.
	d.	Attorneys Fees and Court Costs
		i.	Many attorneys will provide under priced or even free wills. Why do you think they would be willing to do that? They hope to get the probate fees.
		ii.	Probate fees are often a percentage of the value of the gross estate. These do not consider the expenses of the estate.
		iii.	If you avoid probate by using Trust based planning, there will be trust administration expenses upon your death. However, generally these are less than the expense of probate. In some cases the differences are minimal but in many cases the difference is quite large.
	e.	Delays
		i.	Probate proceedings may last anywhere from several months to several years. There are delays built into the probate process to protect any creditors or disgruntled family members or heirs.
		ii.	Certain assets held by estates can be harmed by delays in probate. If there are actively run businesses, volatile securities, or securities held on margin, they may require immediate action following your death. Delays in probate can cause serious failings in the value of these types of assets.
		iii.	When you avoid probate by using Trust based planning your Trustee will be able to take the steps necessary to preserve the value of assets, take action, and even make partial distributions during trust administration.

Taxes
While it is possible to have a will properly drafted to take advantage of the estate tax exemption amount, most wills are not designed to do so. To have a will take advantage of this exemption amount, it is essential that it is drafted to include Trusts that are created by the order of the Court after your death. Though you may appoint a Trustee, the Trustee will have to report to the court and is under the jurisdiction of the court. Therefore, it is ultimately the court that administers the Trusts as it sees fit. Usually the court will honor directions left in your will, however, they have the discretion to do whatever is within their powers under state law.

If you chose to use comprehensive Trust based planning, taking advantage of the exemption amount will be part your planning. There are three possible exceptions to this.

a.	If you have a small estate that will not be subject to either state or federal estate taxes and you have no need to do income tax planning for your retirement plans etc..., it is possible that your Trust based plan will have no tax planning built into it and still be appropriate.
b.	If your trust was created long enough ago, it may have been done with the best knowledge available at the time. However, tax laws have altered significantly. In fact, a trust created prior to 1981 is very likely to have a worse tax effect than having no trust at all.
c.	If you are using an attorney who is not aware of the various tax implications and planning techniques available, you may end up with a trust based plan that should have had tax planning built into it but did not. This is rare, but it does happen.

Sometimes when you have a revocable living trust that is not comprehensively drafted, Advanced Legal Planning, LLC will be willing to "Restate" the trust for you and offer you a discount for some of the work you have already done. This must be decided on a case by case basis.

When you have avoided probate by using comprehensive Trust based planning, all of the trusts are governed by the Trustees you choose, guided by the directions you specify, without any court getting involved in your affairs.