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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about an issue that we are seeing more and more of and that has to do with statute of limitation.  Statute of limitation being the time period that you’re allowed to bring a lawsuit, whether it’s in probate court or civil court.

What we’re seeing and this video may be more to the practicing attorneys out there, but it’s also something the beneficiaries will want to be aware of.  We’re seeing people miss these statute of limitations in trust and will cases and we believe the reason for that is is because it’s a complex analysis to determine what particular statute of limitation applies at what particular time at what particular proceeding in a trust and will contest matter.

Let me give you an example from another area of law to show you why we’re having issues with the trust and estates statutes and we’re seeing those come up more often where people are making mistakes.

Let’s talk about personal injury.  Personal injury is very simple.  If somebody crashes into you in a car.  If somebody punches you in the face, you have two years to bring a lawsuit against that person before the statute of limitation runs.  In other words, you can do anything you want for up to two years, as long as you file your lawsuit before the end of two years.  You can bring a personal injury action against the person who hurt you.

Well, let’s come back to trust and estate law now.  It’s not that simple.  There’s various statute of limits that apply at times.  Let’s talk about the bright line statute of limitations pertaining to decedents.  The general rule is that when someone dies, and everyone should know when someone dies, that’s pretty easy to ascertain.  You have one year to make a claim against that person.  But that year can be shortened to as little as 120 days, depending on the circumstances.

If a petition for probate goes out and you have a will that’s admitted into probate.  Once that’s admitted into probate, now you have 120 days to file a claim against the decedent.  To make matters worse, if you’re doing a certain type of claim against the decedent, you’re going to have what we call a creditor’s claim in the probate estate of the decedent and you’re going to have to file a lawsuit all before the end of the claim period running.

In other types of cases, you only have to file the creditor’s claim but you can file the lawsuit after a year.  And so this becomes confusing to many lawyers as it may be to you now as I’m trying to explain it.

There’s also another complication where you have financial elder abuse claims.  This is where someone has a done a wrongful taking against somebody that’s a dependent adult or somebody that’s older than 65 years of age in California. We don’t want people abusing our elders.  We don’t want them taking their finances in a wrongful taking.  So the statute allows us to sue somebody, the wrongdoer in that case, for up to four years after the wrongful taking.  So we literally can have four years going by, and as long as we get the financial elder abuse case on file before the four years runs, chances are, we beat that statute of limitations.  However, if you were given statutory notice under a trust, which gives you 120 days within which to file a trust contest, and you do not file that trust contest within 120 days, you may be precluded from filing a financial elder abuse claim even though it gives you four years.

One more thing to add and that would be what if the drafting attorney, the attorney that drafts the trust or will, what if they have made a mistake and they hurt you as an intended beneficiary of that estate plan.  In that case, you have one year from date of notice that you knew you were harmed by the attorney’s drafting, to file a legal malpractice case against that attorney.  If you don’t have notice and you discover it later, more than one year after the event took place, you may be able to argue you didn’t have actual knowledge or that you shouldn’t have known about the harm that took place, and you may be able to use a four year statute of limitations to sue the attorney for legal malpractice.

The whole point of this video is not for you to understand all of these varied statute of limitations, some as short as 120 days, some as a long as a year, some as long as four years, is to show you that there’s complexity in each one of these trust and estate cases, you need to have expert analysis of your case so that somebody can see what the facts and circumstances are and what statute of limitations are going to apply to your case moving forward.

If you miss a statute, chances are you’re going to be barred forever from bringing your claim forward.  So even those these are complex, difficult to understand, it’s something at the very beginning of a case you have to spend the time to understand, make sure you’re not missing anything, especially on the shorter ones such as the 120 days, because that one comes and goes very quickly.

Hopefully I haven’t confused you too much.  I’ve confused myself a little bit in going over all this.  All I want to point out is, this is a complex areas, these statute of limitations in trust and estate matters, make sure you get somebody that’s qualified to explain them to you and you understand the time limits you have to bring your claim forward in either probate court or civil court.

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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about how we find assets in a trust or will contest case.  And this is a problem.  This is something that we have a hard time explaining to clients, at times, because the clients come to us and they say I know Mom and Dad had gold bars, silver bars, cash in a safe.  I know that there’s some personal property items that are out there that Mom had and my brother’s taken them and sold them to a pawn shop.  How do we prove that?  How do we get the assets back?

And there’s some good news and bad news here.  But, the good news is, if an asset has a title to it, such as a bank account, that has a title.  A car has a title.  A house generally has a title.  Retirement accounts have titles.  These are generally larger assets in a person’s estate.  We can generally find those assets out there by serving subpoenas on parties that have those documents so that we can look at them and determine what the value of those assets were on the date of death, maybe even prior to the date of death, and then, of course, what they’re worth today.  And we can ask whoever was in control of those assets after someone passed away, what have they done with those assets?  Have they spent them on themselves?  Or have they saved them for the rightful beneficiaries of the trust or the will?

So that is one way that we find assets in these cases.  Sometimes I feel like clients look at us and say, you’re the lawyer, you’re the expert.  Can’t you just go out there and find these assets?  Aren’t these assets just available for you as a specialist in this arena, to go and find.  And what I tell clients is, I wish that were the case.  I wish I had a magic wand that I could waive and I could find all of the assets that had disappeared or gone missing that once belonged to your Mom or your Dad prior to their passing.

There’s going to be some assets that you’re just not going to be able to find in these cases.  Rarely will you find someone whose stolen assets.  Rarely will you have them come to a deposition and they admit that they’ve stole assets.  Even if they get to the point where they say yes, there were some cash in a safe of $200,000.  They’re going to tell you that Mom or Dad gifted that cash to them.  And then that will be the new argument, whether it was a gift, whether it was a loan, whether they took it without permission.  That will be an issue to decide at the time of trial.  But, in most cases, if $200,000 cash is missing, changes are finding it are not going to be great in these cases.  I wish that was not the state of affairs for trust and will cases in California, but, ultimately, if we have titled assets, we can find them.  If we have untitled assets, it can be a problem and the sooner people understand that, come to grips with that, it’s much easier for us to move forward in the case.

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Hi, this is Keith Davidson from Albertson & Davidson.  In this video, we’re talking about trust accountings.  And we just finished a video where we talked about when you are entitled to a trust accounting and it depends on the type of beneficiary you are.  But there’s two instances where you may not be entitled to a trust accounting, no matter what type of beneficiary you are.  And the first instance is if the trust waives an accounting.

This is where you have to read through your trust document to find out if the trust document waives the trustee’s obligation to account.  Normally a trustee has an obligation to account during certain periods, like once a year, or any time there’s a change of trustee.  But if the trust document waives that accounting right or obligation, then you’re not going to be entitled to an accounting.

You can still get one, however.  If you go to court and you can show that there’s a high degree of likelihood that the trustee has breached their duties of trust, then the court can still order an accounting, even though the trust document waives it.  But the trustee doesn’t have to automatically give you an accounting.  So look at your trust document and see if it waives an accounting.

The other instance is if you, as a beneficiary, waived the right to an accounting.  You may voluntarily sign a document waiving your right to an accounting and, in that instance, the trustee does not have to account to you any longer.  You can revoke that waiver and you can do the revocation of the waiver of accounting at any time.  However, once you revoke a waiver of accounting, the trustee only has to account for actions after you did the revocation of the waiver.  They don’t have to go all the way back.

But you’re still entitled to information.  So even if you can’t get an accounting, at a minimum, you should be asking for information about your trust.  You should see the bank statements, the brokerage account statements.  If real property is sold, you should see the closing statement.  You have a right to be reasonably informed about the business of your trust and you should ask for that information in writing.  You don’t have to do anything fancy.  Just send off a letter, an email, or a fax, asking the trustee to give you the documents so you can double check that everything is running smoothly.

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Hi, this is Stewart Albertson with Albertson & Davidson. In this video, I want to talk about how we can support the claim, and meet our burden of proof, to show that undue influence took place.

Some of the markers that we look for are the actions by the person that we believe exerted or exercised undue influence over a decedent.  We want to look at this person’s place of business in the decedent’s life when the decedent was still living.  Did this person have control over the decedent’s access to food?  Did they have control over access to medications?  Did they have control over access to going to medical appointments to see physicians?  Did they have control over the financial information of the decedent?

We see these markers and we look at this person and we say, “did they take their place within the decedent’s life, where the decedent relies on them for many things:  their medications, transportation, food?  Did they take that and did they exercise undue pressure over the decedent to get the decedent to create a trust or a will that benefits them, at the expense of other people?”

The more we see these markers, the more that we see the undue pressure, such as a wrongdoer calling up a lawyer that the decedent has never met to make an appointment to create a new trust or a new amendment or a new will or a codicil to that will, to that person driving the decedent to the lawyer, to meeting in the lawyer’s office with the lawyer and the decedent to create the trust, to have multiple emails and texts with the drafting attorney to make sure that the trust or will is drafted according to the decedent’s wishes, those are all things that we see time and time again in these undue influence cases.

One thing that really helps us, in addition to everything I’ve just pointed out is the medical records. Do the medical records show that the decedent suffered from some type of mental incapacity, such as dementia or Alzheimer’s?  It doesn’t have to be dementia or Alzheimer’s, but that’s one we commonly see.  If the decedent is suffering from any mental incapacity issues, and you have all of those other things we’ve talked about, those elements we’ve looked at, where this person is in a position of power, that generally leads us to believe that that person exercised undue influence over this individual. If they’re receiving a lion share of the estate plan, or they are receiving more than they would have, absent the undue influence.

Those are some of the things we look at to determine if we can show undue influence took place during the lifetime of decedent, often shortly before the decedent passed away.

 

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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about one of more difficult set of cases we come across and I call these the “Difficult Don’t Miss Undue Influence Cases”.  Let me say that one more time – the Difficult Don’t Miss Undue Influence Case.

What is the difficult don’t miss undue influence case?  That’s where someone has exercised undue influence over your mom or dad while they are still living and mom and dad have not passed away.  And so the question is, what can we do to invalidate the trust or the will that the wrongdoer got created using – exercising undue influence over mom and dad?

These are very difficult cases and the reason they are is because it comes down to California law and capacity and where mom and dad fits in that capacity determination.  So, you can file what we call a conservatorship proceeding where you ask the court to put someone else in charge of mom or dad’s estate.  But, as you can probably imagine, if mom or dad has any capacity whatsoever, they don’t like being told that they don’t have capacity and they certainly aren’t going to like that you’re the one who is asking the court to find that they are not capacitated.  So mom and dad can become upset by this.

The person who’s the wrongdoer who is already unduly influencing your mom or dad, they’re going to take advantage of this situation and they’re going to point out to your mom or dad, that look, your son not only doesn’t love you and doesn’t like you, your son wants to take your capacity away.  You son’s trying to get access to your estate before you’re even gone.  This son of yours is a greedy heir and we see this again time and time in these cases where mom and dad are still living and somebody is exercising undue influence over them.

So what are you to do in these type of difficult cases?  Do you file for conservatorship and that’s why we call these the Difficult Don’t Miss Undue Influence Cases.  Because if you’re going to file for conservatorship, you have to win it.  If you don’t win it and mom and dad is capacitated – are still capacitated and a court finds that they’re capacitated.  Chances are if you were in their trust or will, you’re certainly not going to be in it now by way of an amendment or a codicil to the will.  And then you’re going to have a much higher hill to climb after your mom and dad die when you do bring a trust contest or a will contest.

So, what is a better option, perhaps?  And it’s hard, because, sometimes you have to sit back and do nothing while mom and dad are living.  And what we suggest to many clients is just focus on mom or dad in their sunset years of their live, give them comfort, give them care, give them compassion, spend time with them.  Don’t talk to them about their trust or their will.  Don’t talk to them about their assets – as difficult as that may be.  Because the person who is exercising undue influence over them will turn that against you and make it seem like YOU’RE the one that’s trying to get their assets.  YOU’RE the one that’s the greedy heir.  YOU’RE THE problem, not them.

So if you can, stay disciplined.  Focus on your parents.  Care for them in the sunset years, however many months or years they have left.  Then, once they pass away, there are remedies available to you, such as a trust contest, a hill contest, and financial elder abuse that you can file to remedy the undue influence that took place against your parents during their lifetime.

These are very difficult cases.  It’s very difficult to determine the best route to take.  Our advice is generally to err on the side of caution and that is wait till your mom or dad pass and then you can address the undue influence.

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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about undue influence cases.  What makes a good undue influence case and what makes a not-so-good undue influence case?  And let me just set this out as we meet with lots of people that come into our office saying, “Hey, I want to contest my mom or dad’s trust or their will because I know that my brother Bob exercised undue influence over my parents and I’ve been written out of the will or the trust and I will receive no inheritance and I’ve got the best evidence you’ve ever seen Mr. Albertson, or Mr. Davidson, and we’re going to come in here and we’re just, this is going to be a slam-dunk.  You’re going to have no problem winning this case!”

The type of evidence you need to have a good undue influence case, it’s a high bar.  The burden of proof that’s required for you is high.  It’s not easy to invalidate a trust or a will.  So that begs the question, “OK, well then what makes a good undue influence cases versus a not-so-good undue influence case?”

Well, let’s talk about some of the elements that you need to meet to prove that undue influence did, in fact, take place.  One of the first things we have to show is we have to show that the decedent, your parent in this case, was a vulnerable individual.  We can show that several ways.  The most easy way to show that is that they’re over the age of 65 or they’re a dependent adult.  So if they’re over 65, chances are, you could show that they have some vulnerable to them.  The State of California has addressed financial elder abuse and said, “Look, we see a lot of financial elder abuse happening in our state, so we want to stop that.  And so what we’ve done is we’ve set out some criteria for people to look at.  This, these are the elements that we look to to prove an undue influence claim.”

The other way you can look to see if a person is vulnerable is what if they have some type of a medical issue?  What if they have some diagnosis for dementia or Alzheimer’s or anything of the like that affects their mental cognition?  That is something that also will support the element of the decedent being vulnerable.

We also want to look to other elements.  What about the actions or the tactics of the wrongdoer?  The wrongdoer is the person that exercised undue influence over the decedent.  And a lot of times this is not something that you see that’s nefarious or evil or somebody yelling or screaming at the decedent, it’s actually done in a very nice manner.  And it happens like this:  The wrongdoer comes to the decedent while they’re still living and says, “How come your son, Johnny, doesn’t come visit you anymore?  Oh, you know, I don’t think Johnny cares about you.  It’s too bad that Johnny’s not here to take care of you like I’m taking care of you.”  And it’s just done over time.  And, of course, this person already – the decedent already is vulnerable, because they’re older, over 65 or older, they may have a health issue, and so now you have this person who is doing deceitful actions and tactics to influence the elder that their son Johnny really doesn’t care about them and we see this element time and again in a good undue influence case.

We also want to look to another element and that is what type of authority did the wrongdoer have over the decedent?  And authority can come in many forms.  Authority can be that this is the person’s agent, under their durable power of attorney, or maybe they’re already the trustee of the trust.  They can also be somebody that the decedent relies on for their necessaries of live, such as daily medication.  Somebody to drive them to doctor’s offices.  Somebody to help change their diaper in bed.  Somebody that makes sure that hospice is taking care of them.  Here we see the decedent, the elder, is being very reliable on this person who has this apparent authority over them.

The last element that you want to flush out in a good undue influence case is there is an inequitable result.  This is most easily shown in cases where the decedent had a preexisting estate plan that gave everything equally to all of their children.  And we see this time and again.  And then just before they die, they make a change to that trust that did give everything equally to all their children, and they give everything to one person, either one of their children or the wrongdoer who has come into their life and has now exercised undue influence over them.

So in order to have a good undue influence case, where you can meet the burden of proof which is a high bar in the State of California, you’re going to have to show that the victim was vulnerable, that the wrongdoer used actions or tactics that were deceitful, that the wrongdoer had apparent authority over the decedent, and the results that the wrongdoer got was inequitable.  If you can pull all of those elements together through a totality of the circumstances and showing the evidence, you probably have a good undue influence case.

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Hi, this is Keith Davidson with Albertson & Davidson. In this video, I want to talk about some of the warning signs that you should be aware of to clue you in that undue influence might be taking place with one of your parents.

As lawyers, when we get undue influence cases we typically get them after everything’s been done and we’re looking at the facts in hindsight. But, as a child, there’s times when things happen, and you might be suspicious of what’s happening, but you’re not sure if it’s something bad or not. That’s what I want to talk about. These are the warning signs that really should be on your radar and start raising red flags when you see them.

For example, let’s say you have a parent, and you can tell that they’re kind of slowing down, and you notice that somebody (like a neighbor, a caregiver, or a stranger who you don’t even know), starts spending a lot of time with that parent at their house, and then they start helping the parent write checks or go to medical appointments. That could be a real red flag of somebody who’s trying to cozy into the parent and slowly take control.

Typically, the way undue influence works is: somebody starts off by being just a friend, and then a helper, and then they start taking over everything; check-writing, finances, medications, doctor visits, even communications. That’s another warning sign.

Let’s say that you are finding it difficult to talk to your parent. You try calling them and somebody else answers the phone and won’t let you speak. Or, when you talk to your parent, there’s somebody else who’s always on the other line, listening in. That’s a huge red flag that somebody is probably trying to control the flow of information to the parent. That could be a real problem. So that’s another big warning sign.

One of the elements of undue influence is that somebody controls the necessities of life; food, medication, all those sorts of things. So if you see somebody who you aren’t that familiar with, and they’re doing all the grocery shopping for your parent they’re making meals for the parent they might be doing something that’s really nice and maybe there’s nothing wrong with that, or they might be doing something where they’re controlling the flow of food to the parent which is one way to manipulate somebody who is old and not able to resist undue influence. But, that doesn’t mean that every time you see one of these things that it’s bad, but it definitely should raise your attention and you should look into it.

So those are some of the warning signs that you should be on the lookout for in possible undue influence against one of your loved ones.

 

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Hi, this is Keith Davidson at Albertson & Davidson.  And in this video, I want to discuss step-parents.  And I don’t mean to disparage step-parents, there’s a lot of very good step-parent and step-child relationships out there.  But, there’s also some bad ones.  And a lot of times we’re asked, “Can my step-mom or step-dad, can they change the estate plan after my parent dies?”  So, typically, in this scenario, maybe you have a father who married somebody new and that’s your step-mom.  And then your father passes away and you always thought you had a good relationship with your step-mom, but after your dad passes, things start to get a little strained and awkward and you start to wonder can she actually change the estate?

In some cases, it might actually get downright hostile and maybe the step-mom actually tells you, “I’m changing the estate and I’m leaving it all to my kids and I’m not going to leave your father’s share to you after all.”  And you wonder, can she do that?  And the answer is maybe.  And that’s a typical lawyer answer, right?  But it depends; it depends on what your father did when he planned out his estate.  Or, if he didn’t have any planning at all, that could be a real problem.

So the best case scenario would be if your father had created a trust prior to his death, he has the right to leave assets to step-mom and that’s fine.  But, typically, what you’d want to see is that he left money to step-mom in a trust.  So she can use that money for her care and support during her lifetime, but she can’t change the ultimate distribution of it.  Whatever’s leftover after step-mom passes, has to go to you.  But that only works if your dad created a trust and if he had a trust created that had those type of terms in it that allowed the step-mom to use the assets but not control them.  That required that the assets go to you after death.

If your father didn’t do that, then you probably are not going to be entitled to his share of the estate.  And so what happens a lot of times is, either your father leaves everything to the step-mom, in which case she can do whatever she wants after your father dies, and she can cut you out.  Or, he just doesn’t plan at all and things just pass to the step-mom because it’s in joint tenancy or she’s the beneficiary on life insurance, or whatever the case may be.

So when these things are not planned out and if the assets actually pass to step-mom after your father passes away, then you’re really in trouble, because the step-mom can do whatever she likes.  She becomes the owner of those assets and she can do whatever she wants with them as the owner.

The fact that your father may have had a family home that you grew up in and lived in and has been in the family for decades, the law doesn’t care about that – if your father didn’t plan it out property.  And so that’s really the big question.

So anytime somebody approaches us and says, “Can step-mom change the estate after my father passes away?”  The first question we’re going to have is, “Well, what did your dad have in place?  Did he have a trust?  Did he have a will?  Did he have something that we can look at to see if you, as a child, have any rights to any of those assets?” And if you were to tell us that no, he didn’t have any of those things, then chances are, you’re out of luck.  And that’s a little something about the downfalls of step-parent and step-children relationships when it comes to passing assets.

 

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Hi, this is Stewart Albertson with Albertson and Davidson and we get this question every now and then, and the question is: Do I really need to hire a lawyer for my trust contest or will contest or can I do it on my own? Can I go order a book from Nolo press or from Amazon and just figure out how to do this myself? And here’s the answer: No. That could be the end of this article right now, but no, you cannot handle your own trust contest or will contest.

I know that sounds like a self-serving statement because I’m a lawyer and I get paid to bring these cases, but this would be like asking you, can you handle your own gallbladder surgery? Can you handle your own appendectomy? Can you handle your own heart surgery? No, you’re going to have to hire professionals to do that if you want it done right. So get the books from Amazon, get the books from Nolo press so that you can educate yourself on what a trust contest is, a will contest, and how they work so that you can go in and sit down and have a good conversation with a professional lawyer to determine the best course of action moving forward. But if you really want a trust contests or a will contest done properly, you’re going to have to use a professional lawyer who has the experience in the field to handle it properly.

 

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This is Keith A. Davidson from Albertson and Davidson. In this video, I want to talk to you about the differences between Wills and Trusts. A lot of times people think that Wills and Trusts are the same thing, that they’re the same type of documents, and they really aren’t. Wills and Trusts are very different, and so let’s start with a discussion of Wills, and then we’ll talk about Trusts and you can see the differences between the two documents.

Wills are testamentary documents, and what that means is they only come into effect, they only actually are created, upon somebody’s death. Now you go ahead and create the Will and write it down and sign it prior to death, but it doesn’t operate until after death. For Wills, there’s a lot of what we call formalities that you have to follow.

To have a valid Will, you have to have it in writing. It has to be signed by the person who’s creating the Will, and a typewritten Will has to be witnessed by two witnesses, or it has to be in the testator’s own handwriting. That’s what we call a holographic Will. If you don’t meet those formalities when you create a Will, then the Will simply isn’t going to be valid. That’s something that is unique to Will’s. You’re not going to have that with Trust.

After somebody passes away, a Will cannot operate over their assets until you take that Will to court and you have the court admit the Will to probate. That’s where the court decides whether the Will is valid or not, and until the Will is admitted to probate, nothing can happen with that Will. You can’t administer it. You can’t manage the decedents assets. It has to go through this court process in order to operate and then the Will ultimately will dictate how the assets pass out of probate and to the beneficiaries who are intended to receive them. And that’s generally how a Will works.

A Trust is very different because most people create what we call a living Trust. In legal terms, we would call that an inter-vivos Trust, meaning that it’s created during your lifetime and it actually operates during your lifetime. So the Trustee of your living Trust can manage your assets, can make management decisions over those assets, and it operates even if you lose capacity. That’s different from a Will because the Will never helps you if you lose capacity, but a Trust does. And then after you passed the Trustee can administer that Trust without having to go to court.

Trust don’t require any court oversight in order to be administered. And in order to create a Trust, all you have to do is have something in writing and signed. You don’t technically even need to have it notarized, although most Trusts are notarized and they probably should be, but that’s not a legal requirement that they be notarized.

Trusts tend to be a lot more flexible because you can leave your assets to your children or your beneficiaries, and you can have all sorts of flexibility in how you leave your assets to them. So, you can leave something in a child’s Trust that holds their assets until a certain age, or you can leave something to your grandchild and also hold that until they reach a certain age. There’s all sorts of flexibility that you can build into your Trust that is much harder to do under a Will because the Will has to go to court and through the probate process in order to be administered.

So that is some differences between a Will and a Trust, and I think you’ll see that they’re very different documents.