Features of Wills & Trusts

• A person plans his estate because he knows he may not be around to support his loved ones in the future. An estate planning attorney can help the person dispose of his property in a will and/or a trust. While planning an estate, a person should keep in mind that certain features must be incorporated into every will and trust.

Formalities

• Formalities are the requirements needed to create a valid trust. The formalities needed to create the trust depend on the trust property and the timing of the trust's execution. A trust involving personal property does not need to be in writing, while a trust involving real property must be in writing. A settlor is the person who creates a trust and transfers or places original assets into the trust.

Trust Formalities

• A trust must have a res or property, or it will fail. The description of the res must be certain and definite so that a court and all interested parties can be assured that the trust has been created as intended. In addition to a res, a trust must have a beneficiary. A beneficiary is the person who has equitable title to the res of a trust. A trust must adequately describe the beneficiary for the trust to be valid. Although the beneficiary does not necessarily need to be described by name, it would be best if the trust described the beneficiary by name if at all possible. A trustee is any individual or legal entity capable of holding title to the res of the trustee. A trust must have a trustee, but the absence of a trustee will not cause the trust to fail. The court that has jurisdiction over the trustee can appoint a trustee to the trust.

Will Formalities

• A testamentary trust comes into existence at a person's death and must comply with the statute of wills. Therefore, a testamentary trust must be executed with the same formalities as a will. The person making a will is called the testator. The testator should sign at the end of the will. If the testator is unable to sign the will, he must direct another person to sign his name in his presence. At least two witnesses must attest to seeing the testator sign the will and they also must sign the will. Witnesses must sign within a reasonable time after witnessing the signing of the will, the testator's acknowledgment of the signature, or the testator's acknowledgment of the will in the testator's presence. A witness to a will signing must be at least 18 years of age.