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A Will is a document in which a person directs how his or her property is to be distributed upon his or her death. In Indiana, Wills are closely governed by statute and must be in writing to be legally enforceable.
If you die without a Will, Indiana law provides for how your property is given away. Ultimately, if you own property and want to determine how it is given away, you should have a Will or living trust.
Trusts use certain legal terms which can appear daunting at first but are actually quite simple. A trust ordinarily consists of a settlor, a trustee, and at least one identifiable beneficiary. The same individual or entity can, and often does, assume more than one of these roles. A simple way of thinking about these roles is:
These roles may vary from the above descriptions depending on the type of trust, but in broad terms these are the roles which make up a trust.
Generally speaking, a Trust should not replace a person’s Will. In the event that a person dies with a Trust and no Will, any property not included in the trust will be distributed by Indiana law. To prevent this from happening, people with a Trust should also have a Will, so any property not included in the Trust will be distributed according to the person’s wishes and not Indiana law. Often this is handled through a provision, sometimes called a "pour over" provision, which states that any property not within the Trust at death should be transferred to the Trust via the Will upon death.
While it is not necessary to have a lawyer create a Will or Trust, there are several potential pitfalls that could result in your Will or Trust failing and your property being distributed through intestacy rather than by your choice. Speak with an estate planning lawyer who will ensure that all of your assets are taken care of upon your passing, and avoid putting your loved ones through a potentially lengthy and expensive probate process.
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