A trust is an agreement under which money or other assets are held and managed by one person for the benefit of another (Washington State Bar Association, 2006). A trust is resorted to so that a person may be allowed to managed and hold assets in behalf of another so that it may be preserved or managed properly to the benefit of a beneficiary. One of the institutions that have trusts functions are the banks. A trust is normally undertaken in case of minors, who may not be able to manage properties or assets by himself. In order to ensure that these assets will not be wasted, a trust may be put up for him.
A provision of the trust may allow for the transfer of the assets to the beneficiary at the proper time, or in most cases once the person or the minor comes of age or upon reaching the legal age. There are various benefits in a trust arrangement. This may include providing financial security for the family and other beneficiaries (Washington State Bar Association, 2006). The history of the concept of trusts can be traced back in the early 1500s in England wherein landowners used the system in order to give legal title over their land to a third party while retaining ownership over such property.
Generally, according to Cochran (2007), a trust is “a right to property which is held in a fiduciary relationship by one party for the benefit of another”. Cochran (2007) further added that trusts are created as an alternative to or in conjunction with a will and other elements of estate planning. It cannot be avoided that sometimes, issues arise with the validity or execution of a will. This may result to a will contest.
A will contest, according to General Information Regarding Estate Litigation (n. d.), is a type of lawsuit that relates to a dispute over the terms or validity of a deceased person’s Last Will and testament. There are various ways by which a property can be acquired. One of this is through succession. Succession can either be testamentary, intestate or mixed succession. Testamentary succession is that which is governed by the formalities of a will while intestate succession is that transfer of property or estate without the benefit of a valid will. A will is an act by which a person is allowed by law to dispose of his property to take effect after his death.
Through a will, a person can already divide and dispose of his assets so that he can be assured that his properties can go to the persons he wants to receive them. It is said that the making of a will is personal act so that it cannot be carried out by an agent or cannot be left to the discretion of a third party. Every person, who is not otherwise prohibited by law, may make a will. However, a person under the age of eighteen may not make a will because of minority. In his will, the testator can institute persons who are to succeed him in his properties, rights and obligations known as the heirs.
However, a will can remain valid even if no heir is instituted because in its absence the institution of heir can proceed according to the legal provisions on legitimes. In testamentary succession, there are forced-heir or compulsory heirs. However, should the testator have no compulsory heirs, he can distribute his assets in favor of any other person with the capacity to succeed. Nevertheless, no compulsory heir should be omitted. The preterition or omissions of a compulsory heir is not allowed.
For example, a child or descendant cannot be legally omitted except through a valid disinheritance. This presupposes that a person can also disinherit a compulsory heir under reasons accepted by law. Under the concept of legitimes, even if the testator left a valid will, the law ensures that the will does not only omit a compulsory heir, but also ensures that the compulsory heir receives that portion of the inheritance that the law provides. The law therefore provides a guideline sin the distribution of inheritance among compulsory heirs.
Under the law, the spouse, descendants and ascendants are the compulsory heirs. In order for a will to be valid, it should be in writing, signed by the testator and witnesses in the presence of a notary public. As a public document, it should be notarized. Each and every page thereof should be signed at the left side for attestation. This will add for security and to ensure that there be no omissions or insertions. It should also be properly paged as an added security feature. The presence of credible witnesses is also an essential requisite for the validity of a will.
However should also have the qualities or requirements of law. For example, they should also have the capacity to become witnesses like they should be of legal age and of sound mind. In addition, it is not enough that during the execution of the will, the witnesses are present or have signed the document. They should be aware of their role and the reason of their presence – that is to serve as witnessed to the execution of the will. Generally, a will can be revoked because it is a personal act. At any time before his death, the testator can revoke his will and execute another.
He may also carry out a codicil in addition to a will. In addition to this, a will should be probated so that the court can determine its validity and advice for its execution. In the probate of the will, the court can determine the administrator or executor of the will. In addition, in the probate of the will, the terms used in the will should be sued in their ordinary sense. Technical words should be taken in their technical meanings unless otherwise indicated that another intention is required to be satisfied.
In the interpretation of the will, the court should lean towards that will avoid intestacy. At the probate of the will or the legal process of determining the validity of the will before it is executed, it should be remembered that the validity of the will should be based according to the laws existing at the time of its execution. Another form of succession is the intestate succession or the legal succession. In this case, a person dies without a will. It may also happen that the person dies leaving a will that turns out to be void.
In the absence of a valid will, the courts or the law determines the disposition of the properties of the deceased according to the rules prescribed by law or in some jurisdictions, known as legitimes. Under the concept of legitimes, the extent to which a person can inherit from the deceased is determined by relationship. It should however be noted that in some cases, there are other heirs to an estate. For example, the state can inherit from a person especially if there is no known heir or beneficiary identified in a trust. In this case, the properties can go to the government to carry out charitable and social services.
Comparing intestate and testamentary succession, it can be said that testamentary succession is much better because a person can be allowed that properties are disposed of according to his will. In this way, he can also avoid leaving assets to persons and family members he does not wish to receive. As the law allows a valid disinheritance, this also allows and encourages people to maintain good relations with their family in order to avoid being disinherited. Although superficial, it can give way to genuine relationships regardless of the inheritance.
In case of inheritance, perhaps one of the primary assets that a testator or even legal succession provides for the heirs is the home or the homestead. In some cases, this is the only property that a deceased can leave to his family. For this reason, the law protects the heirs by disallowing the attachment of the family home in favor of the creditors to avoid the situation of the family being displaced and stripped of with this very important legacy. The issue of succession and acquisition of property is a very important aspect of the civil law that pertains to the relations of men.
In this regard, in order to maintain a harmonized and peaceful community, these laws should be followed in its strictest sense.
References Cochran, S. (2007). Estates and Trusts. Retrieved January 17, 2008, from http://www. law. cornell. edu/wex/index. php/Estates_and_trusts General Information Regarding Estate Litigation. (n. d. ). Retrieved January 17, 2008, from http://www. bradynordgren. com/articles_estate_litigation_information. html Washington State Bar Association. (2006). Trusts. Retrieved January 17, 2008, from http://www. wsba. org/media/publications/pamphlets/trusts. htm