Joseph Fedorowsky – Legal Blog

As distinguished from an inter vivos or living trust, a testamentary trust is effective upon the death of its settlor (the person who sets up the trust) and the will is handled through probate. Every state has its own statutory requirements which must be followed when probating or processing a will.

The most typical or common reason for using a testamentary trust is to conserve a decedent’s assets and to transfer wealth. A testamentary trust requires a trustee who administers the res or trust property which comprises a decedent’s estate. The trustee’s responsibilities include the orderly distribution of various property to beneficiaries named in the will, as set out in the trust.

There are substantial tax consequences when probating a testamentary trust. At the time of the decedent’s death, the assets of the trust are subject to estate and transfer taxes. It is the trustee’s responsibility to sort out these issues, generally by working with probate counsel.

The advantage of a testamentary trust is that the settler, the decedent, has a great deal of control over how the estate is distributed. This may well be a significant issue for the decedent, especially when it comes to setting aside the finances for a loved one’s education or maintenance.

Joseph Fedorowsky / Legal Blog

There are a number of ways that trusts are classified. One classic approach is to characterize the trust in relation to the Settlor, the person who established the trust. A Settlor is alternatively referred to as a Trustor, Grantor or Donor.

A trust created during the Settlor’s lifetime is called an inter vivos (within the life of) trust. Today, an inter vivos trust is commonly referred to as a living trust. This is not a new legal creature, just a more user friendly term.

One of the many benefits of a living trust is to avoid probate. That is a court supervised legal process which validates a Will and distributes a Settlor’s property at his or her death. In many states, the probate process is statutory with fixed fees. In addition to avoiding the cost and time to probate an estate, a living will also avoids making a public record and is more private as compared to the probate process.

There are additional advantages to setting up a living trust, including possible tax savings and access to institutional trustees to administer the trust. Using professional trustees can be cost effective and fairly safe.

There are many legal professionals who know the ins-and-outs of living trusts, and can help you determine what is best for your particular situation.

Joseph Fedorowsky / Legal Blog

These are three distinctly different types of intellectual property rights.

Copyright is a creature of law, which allows for the protection of an author’s original work, assuming, of course, it’s in a tangible medium of expression. Copyright protection does not extend to ideas, which are not protected in the law.

A trademark protects the phrases, designs, symbols and or words that identify the source of particular goods or services which distinguish them from others. Trademark protection is available on both the state and federal level.

The third type is a patent which basically protects inventions and discoveries. As you can well imagine, the legal process to identify and protect a patent is complex and fairly expensive.

The United States Copyright Office website (http://www.copyright.gov) is a fantastic resource which has a lot of useful, understandable information.

Joseph Fedorowsky / Legal Blog