22.4: Wills and Trusts
Both real and personal property may be transferred to another owner through wills and trusts. Although most people think of wills and trusts as a tool for conveying property owned by individuals, businesses property often needs to be transferred when the business owner dies. This is especially true for sole proprietorships and partnerships.
A will is a document by which an individual directs his or her estate to be distributed upon death. Wills must be in writing and signed by the individual(s) making them. Although state laws regarding wills vary slightly, most states require:
| Requirement | Description |
| Legal age |
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| Testamentary intent |
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| Testamentary capacity |
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| Signature |
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| Witnesses |
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A trust is a property interest held by one person or entity at the request of another for the benefit of a third party. For a trust to be valid, it must involve specific property, reflect the person’s or entity’s intent, and be created for a lawful purpose. Trusts are very popular for leaving property to benefit children who are under 18 years old, elderly, and people with disabilities.
When planning how to distribute property upon death, it is important to understand the difference between probate and non-probate assets. Probate is the process through which a court determines how to distribute property after someone dies. Some assets are distributed to heirs by the court ( probate assets ) and some assets bypass the court process and go directly to beneficiaries ( non-probate assets ). Probate assets generally are subject to inheritance taxes and distribution can be delayed until the court orders the distribution of the assets. Because of these drawbacks, many individuals prefer non-probate assets.
| Probate Assets | Non-Probate Assets |
|
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Death of a property owner impacts the ability to transfer property. The ownership interest dictates how the property may be transferred.
| Type of Ownership | Death of Owner | Transfer | Where Available |
| Tenancy in Common | Owner’s interest passes to heirs | Owner may transfer interest without agreement of co-owners | All states |
| Joint Tenancy | Owner’s interest passes to the remaining joint tenants as non-probate asset | Owner may not transfer interest without agreement of co-owners | All states |
| Tenancy by Entirety | Owner’s interest passes to the surviving spouse | Owner may not transfer interest without agreement of spouse | Approximately half of the states |
| Community Property | Half of owner’s interest passes to the surviving spouse & other half passes to other heirs | Owner may not transfer interest without agreement of spouse | Only 9 states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas & Washington |
If someone dies without a will or trust, the probate court will determine:
- The nature and value of the decedent’s estate;
- The nature and value of any outstanding debts and tax obligations;
- Whether the decedent has any heirs;
- The identity of the heirs and their relationship to the decedent; and
- What, if anything, the heirs are entitled to receive from the decedent’s estate.
The essential role of the probate court is to ensure that the deceased person’s creditors are paid and that any remaining assets are distributed to the proper beneficiaries. However, this process takes time and costs money from the deceased person’s estate. And there is no guarantee that the deceased person intended his or her property to be distributed based on the state’s rules on who qualifies as an heir and what they are entitled to receive. Business assets owned by the deceased person may complicate the probate process even more.