The UAW Legal Services Plan is the largest pre-paid legal services program in the country.
Plan staff attorneys are represented by AFSCME and support staff are represented by OPEIU.

 



Frequently Asked Questions
 
Topics to Consider
The following sections are brief reviews of the law as it applies in MOST states.  The following may not be correct depending on the state you live in.  If you have a legal problem, you must consult a lawyer to understand how the law applies in your state and in your situation.
 
What is a Will?
A Will is your written instructions to distribute your property at your death to those persons whom you wish to receive it. Your Will only transfers property that you own at the time of your death. That means it would not include property you own jointly with another (even a spouse) if that property is owned with survivorship rights. Having a Will does not avoid probate. A Will states who will receive your property. Probate is the process used to transfer the property. A Will also lets you identify who will handle the process after your death (a Personal Representative or Executor); who will take care of minor children (the Guardian); and allows you to set up a trust to manage property for those you identify (note that this type of trust does not go into effect until after your death).



Does Some Property Pass at My Death
Some property may pass to others on your death without being transferred by a Will or a trust. Any property that is owned jointly with survivorship rights passes automatically to the joint owner. This can include real estate, bank accounts, stocks or bonds and other property. Some property may be paid directly to a named beneficiary. This includes life insurance policies, IRAs, or certain bank accounts that have named beneficiaries. There can be advantages to simply naming a beneficiary for certain types of property, whether or not you have a will or a trust. For example, if you are married, it may be preferable to name a spouse as the beneficiary of an IRA or 401K account for income tax purposes.
If a husband and wife own everything jointly, and they have identical wills, when the first spouse dies, the surviving spouse will become the sole owner of everything held jointly, without the need for reviewing the will or going through probate. However, when the second spouse dies, then the assets will pass through probate and be distributed in accordance with the will of the second spouse. If there is no will, then the assets will pass according to the laws of your state through the Probate process.


Are there disadvantages to holding property jointly with others?
Although joint ownership and naming beneficiaries can be used where appropriate to avoid probate, these arrangements must be used carefully because they can have many negative consequences. It can be very dangerous to add parties other than your spouse as a joint owner to any of your property. The possible negative consequences include: losing control over your property, increased tax liability, inadvertently making your property available to creditors of the other party, and inadvertently disinheriting other persons whom you may want to share in this property at your death. Because there are so many negative consequences to such an action, you should not add others as a joint owner without discussing it thoroughly with an attorney.

In addition, if you are in a second marriage and have children from your first marriage to whom you wish to leave property upon your death, you should discuss this with your attorney to be sure your estate is set up properly.



What is a Living Trust?
A Living Trust is an arrangement in which you transfer legal title of your assets to the trust, to be managed for the benefit of the persons named in the trust document as beneficiaries. The person creating the trust is usually the trustee until he or she dies, or becomes unable to manage the trust due to poor health or disability. At that time, a Successor Trustee takes over management of the trust. If you have a Living Trust, you also still need a Will. The Will is necessary to distribute any assets on your death that you may not have transferred to the trust, and to name a guardian for minor children.
A Living Trust can avoid probate; allow a successor trustee to manage your assets if you become disabled, instead of someone appointed by the court; limit the share your spouse receives of your estate; and simplify distribution of property you own in more than one state. Information about assets in a living trust is also generally not available to the public.

In some instances, the advantages of a Living Trust may be accomplished by other means, such as a durable power of attorney, bank trust account, or joint ownership.

Under certain circumstances, probate may present certain advantages over a Living Trust. For example, a Personal Representative may ask the court for supervision where questions arise. It is also advantageous in limiting the time in which creditors or heirs can file claims against an estate or challenges to a will.

In regard to privacy, a Living Trust may not have significant advantages over probate under a Will. Independent probate administration may be used in most circumstances. This does not require the Personal Representative to file an inventory of the assets of the estate, nor any annual accounts, and as a result, information on the deceased's assets are not made available to the public.



Is a Living Trust Best For You?
In order to avoid probate through a Living Trust, you must transfer assets to the trust before your death. On your death, any assets remaining in your name and not in the trust must be probated. (This would not include property that is held jointly with survivorship rights with another person or where a beneficiary was already named.) Because you must transfer at least your major assets to the trust, a Living Trust is more complicated and time consuming to set up than a Will. Even if you are the trustee, when you handle your own business, you will do so as the Trustee rather than as an individual. In addition to transferring assets to the trust when the trust is set up, you must also transfer assets that you acquire later to the trust. These transfers are not necessary with a Will.
In addition, you should be aware that you will not save any taxes by setting up a trust, unless the value of your property is greater than the "Unified Credit" allowed by Federal Estate tax law. The "Unified Credit" is $1,060,000 in 2003, and will increase in annual increments to $2,000,000 in 2006. If your assets are greater than the "Unified Credit" at the time of your death, there can be tax advantages in the creation of trusts, assuming the trusts are set up and funded properly.
Finally, people often believe that setting up a trust will result in one's heirs not needing an attorney and that the transfer of the assets will be simplified and quicker. That is generally not true.   The property owned by the "trust" will still have to be transferred to the trust beneficiaries after the death of the original trustee.   Generally, the time involved, complications and need for an attorney will be the same with or without a trust.
Is it worth the time and trouble for you to set up a Living Trust? In general, couples who jointly own their home and have few other assets may not need a Living Trust. On the other hand, if you have numerous or complex investments, real estate in more than one state, or want to leave your estate to persons who you do not believe could manage it on their own, or if the value of your assets are greater than the "Unified Credit," you may be a candidate for a Living Trust. The final answer to this question should be made after a thorough review of your estate and a discussion of your needs and desires with an attorney.


 
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