What Primary Documents Govern Estate Plans?

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Estate planning includes a primary document.

Comprehensive estate planning typically does not involve one document.

Instead, several components work together to provide instructions for your affairs after incapacity or death.

Like any good team, estate plans have a document that directs how the plan should work together.

According to a recent The News-Enterprise article titled “Make a choice about primary testamentary planning documents,” these are known as the primary estate planning documents.

The primary choice in estate planning is whether you will use a will or trust.
The first choice in estate planning is selecting a will, revocable trust, or irrevocable trust as the primary document.

The primary testamentary documents are responsible for directing what happens with the estate after the owner has died.

Typically, estate plans are governed primarily by last wills, revocable trusts, or irrevocable trusts.

When a last will is the primary estate planning document, the property is directed to heirs through the probate court.

Generally, the estate must be open within the probate court for at least six months.

Because probate can differ between jurisdictions, the timing may vary.

With a revocable trust as the primary document, assets held by the trust are essentially held by an independent legal entity.

Because these assets do not have to be distributed through probate, heirs commonly receive inheritances more quickly than when a last will heads the estate plan.

These trusts do not protect estate assets from creditor claims.

For these reasons, trustees must either gather outstanding bills and make payments before distributing the assets or open a probate case to allow creditors to submit and bar further claims.

The fastest means of transferring assets after death when set up correctly is the irrevocable trust.

It also can be the most complicated to set up.


Although it is the best primary document for protecting assets, it is also the strictest of all instruments.

The terms and provisions of the irrevocable trust, when it is created, can either give the grantor the ability to make changes to beneficiaries or can be immutable.

These choices have tax consequences for the assets after the death of the grantor.

Because these trusts are protected from creditors, irrevocable trusts allow trustees to begin the process of transferring or liquidating assets as well as filing taxes almost immediately after the death of the grantor.

Although there is typically a primary document governing an estate plan, estate planning does not end with these documents alone.

For example, a plan with a trust as the primary instrument should be complemented by a last will to govern any assets not transferred to the trust.

Comprehensive estate planning includes assets with joint ownership or beneficiary designations.

These designations must be kept updated.

If the joint owner or beneficiary dies before your death, your assets will be distributed according to the terms of your trust or last will.

An experienced estate planning attorney will help you determine the type of primary document you need for your planning goals and needs.

There is no one-size-fits-all approach.

ReferenceThe News-Enterprise (Oct. 7, 2023) “Make a choice about primary testamentary planning documents”

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