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ESTATE PLANNING
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When talking with clients to set up their estate plan, we often hear the following question: What do I need … a will or a trust? The honest answer is most people need several documents that work together to create a quality estate plan. However, the right combination depends on your family situation, your assets, and your goals. Here’ s a practical overview.
What Does a Will Actually Control?
A Last Will & Testament is the foundation document of most estate plans. It names an executor to handle your estate, directs how assets should be distributed, and perhaps most importantly for parents of minor children, it names a guardian. Without a valid will, Pennsylvania’ s intestate succession laws decide who gets your assets, and the result may not match your wishes.
It is important to understand that a will doesn’ t control everything. Assets pass to heirs in four distinct ways: through joint ownership( which passes automatically to the surviving owner), through beneficiary designations( which override anything the will says), through the will itself( for assets titled solely in your name), or through intestate succession if there’ s no will at all. How real estate is held matters too. Tenants by the entireties and joint tenants with rights of survivorship bypasses the will and passes to the surviving spouse or owner, respectively, while tenants in common pass according to the will.
Certain assets— transfer-on-death accounts, jointly held property, and life insurance or retirement accounts with named beneficiaries, pass directly to the named beneficiaries— regardless of whether you have a will or a trust. For many Pennsylvanians, coordinating a combination of beneficiary designations and jointly held assets may reduce or even eliminate the need for a trust.
It is important to note, however, that if a beneficiary receives public benefits like Medicaid or SSI, a direct inheritance can jeopardize their continued eligibility for these essential services. A Special Needs Trust preserves those benefits while still providing supplemental support for things government programs don’ t cover.
When a Revocable Living Trust Makes Sense
A revocable living trust becomes active the moment it’ s created and funded— not just at death— and can be amended or revoked at any time. Its biggest advantages are avoiding probate entirely and providing immediate access for a successor trustee if you become incapacitated, without court involvement.
Trusts tend to make the most sense for estates nearing $ 2 million or more, blended families with complex dynamics, property owned in multiple states( which otherwise triggers separate probate proceedings in each state), and business or LLC interests. Choosing the right trustee matters as much as creating the trust itself, since that person has a fiduciary duty to act in beneficiaries’ best interests.
The single biggest mistake with trusts isn’ t creating one— it’ s failing to fund it. Assets MUST be retitled in the trust’ s name, and beneficiary designations should be updated accordingly, or the planning effort is wasted.
Irrevocable Trusts and Asset Protection For long-term care planning, an Irrevocable Income Only Trust( IIOT) can protect assets from nursing home costs and help someone qualify for Medicaid or VA Benefits. These trusts require careful timing and ideally should be established at least five years before care is needed.
Real estate held as tenants by the entireties and joint tenants with rights of survivorship bypasses the will and passes to the surviving spouse or surviving owner, respectively, while tenants in common pass according to the will.
Other assets, such as transfer-on-death accounts, jointly held property, life insurance and retirement accounts with named beneficiaries, pass directly to the named beneficiaries— regardless of whether you have a will or a trust. For many Pennsylvanians, coordinating a combination of beneficiary designations and jointly held assets may reduce or even eliminate the need for a trust.
It is important to note, however, that if a beneficiary receives public benefits like Medicaid or SSI, a direct inheritance can jeopardize their continued eligibility for these essential services. A Supplemental or Special Needs Trust preserves those benefits, while still providing supplemental support for things government programs don’ t cover.
Don’ t Forget These Other Essential Documents
A Durable Financial Power of Attorney lets a trusted agent make financial decisions on your behalf; something a spouse doesn’ t automatically have the right to do. A Health Care Power of Attorney and Living Will similarly help to ensure your medical wishes are honored if you can’ t communicate them yourself.
The Bottom Line
While there is no“ one size fits all” plan for Wills and Trusts, the following should serve as a general guide. A simple estate with straightforward distribution may only need a will. Larger or more complex estates often benefit from a revocable trust, while asset protection and Medicaid planning may call for an irrevocable trust. The best thing you can do is consult with an experienced estate planning and elder law attorney who can evaluate your specific circumstances.
Christine Brown Murphy is a managing partner of Zacharia Brown & Bratkovich PC, an Estate Planning and Elder Law firm. The firm focuses its practice on special needs trusts; estate planning including wills, powers of attorney, living wills, and trusts; estate administration; Medicaid eligibility, and Veterans benefits planning. Pittsburgh-area office locations include McMurray, Murrysville, and Cranberry. Contact information – Phone: 724.942.6200 Website: zacbrownlaw. com E-mail: christine @ zacbrownlaw. com
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PA Offices McMurray | Murrysville / Delmont | Cranberry Township 724.942.6200
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