Raleigh, NC asked in Estate Planning and Family Law for North Carolina

Q: My father has a home paperwork. Should we list it as a Will. or put it in trust upon his death

My father is 83 years old. My brother still lives within the home at this time. Upon the death of my father we have done a LegalZoom will. Should we list the home that is his only asset and a Willl or put it in trust for my brother and I upon his death. What is the difference or pros and cons of putting something in a Willl as opposed to trust

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1 Lawyer Answer
Catherine E Bruce
Catherine E Bruce
  • Estate Planning Lawyer
  • Chapel Hill, NC

A: First of all, you are talking about your father's estate plan. That means that you must abide by your father's documents/decisions. You can’t make those decisions for him. If he has made a will that divides up his property a certain way and he wants to stick with that, you and your brother will have to do what he wants. He could change his estate plan at any time, of course, if he is still able to understand what an estate plan is and to make decisions about how he wants his property distributed.

Trusts are not inherently better than wills. Wills are cheaper and usually much simpler to create. They distribute the property directly to the people named in the will when the decedent passes away. You have to go through probate to distribute the property via a will, but probate in NC is not too complicated or expensive. Trusts can be useful in certain circumstances, but they are more expensive and often unnecessary unless you have a particular reason that you need a trust rather than a will. They avoid probate, which can save some fees and time. They are often used if the property will go to children or to disabled individuals. And they can be helpful for more complicated distribution plans (i.e. usually not just “50% to my daughter, 50% to my son”).

Whether a trust or a will is right for your father depends on the family circumstances and on what your father wants to achieve through his estate plan. If he is considering changing his estate plan, he really needs to talk to an estate planning attorney in his area. Many estate planners offer free consultations.

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