Last Will and Testaments v. Trusts

What is a Last Will and Testament?

This is a legal document by which a person expresses their wishes as to how their property is to be distributed at death. It names one or more persons or professionals to manage the estate for beneficiaries.

What is a Trust?

A trust is a legal arrangement that allows a third party, or trustee, to hold assets on behalf of a beneficiary or beneficiaries.

Protecting Assets

Wills and trusts both are estate planning tools that allow individuals to formalize their intentions with respect to their assets at their death.

In the case of an individual or family that would like to leave resources to a person with special needs who may be receiving means-based government benefits (Social Security, Medicaid, Nutrition Assistance, etc.), either a will or trust, or a combination of both, can be used to protect the beneficiary and the beneficiary’s government benefits.

How Are Wills and Trusts Similar?

  • Both allow the appointment of a fiduciary to handle the estate or trust at death.
  • Both can be used to establish a third-party special (or supplemental) needs trust.
  • Both allow for the administration of an estate, payment of creditors, etc.
  • Both also can provide for your typical beneficiaries.

How Are They Different?

  • A will requires a court procedure called probate.
  • A will can only be administered at death, unlike a trust.
  • A will can nominate a successor legal guardian for a minor or a special needs adult.

Questions to Consider With Your Lawyer

  • Who do I want to administer my estate? A family member? A professional? Is this who will administer the funds for my special needs beneficiary?
  • Do I a need a special needs trust and what type is most appropriate? Do I want to start contributing to the trust immediately or upon death? Will family members contribute?

Finding the Right Professionals

Selecting the right attorney, planner or other professional is vital in planning for the future of a special needs child. The following resources are designed to help you make the right choice: