Living Trust Vs Will - Which is Right For You
Posted by admin on Feb 7, 2010
Living Trust vs Will is an estate planning question I hear daily in my law practice. These are the two main forms used to accomplish estate planning. Most people have heard of the Will, but in our law practice the Revocable Living Trust is the document of choice. Both get the job of transferring your property done at death but do it in different ways. The main difference is whether your estate will go to court or remain private.
A Will is a formal legal document that tells the Probate Court who gets your probate eligible property. Probate eligible property is owned by a person at their death with no beneficiary designation or co-owner. Having a Will does not avoid probate.
The primary objective of the Living Trust vs Will is to avoid probate and keep you, your family and property out of court. The Living Trust is a separate entity that is created to own and manage property. The creator of the trust, the Grantor, is typically also the trustee, person in control, and the primary beneficiary, in most cases with the spouse and any minor children. The main differences lie in the before and after death administration.
You do very little before death with a Will. Generally you sign it and put it in a safe place. You may also make some beneficiary changes on life insurance and or retirement plans but that is about it. After death is where the work starts. The family will meet with an attorney who will then initiate the probate court proceeding. This court procedure will last approximately eight to fourteen months. There is also a cost associated with the probate. Attorneys can either charge a percentage of your estate usually ranging between 2% - 4% or by the hour with total costs ranging from $4,000 - $10,000 or more.
To contrast a Living Trust, before death is where the work is. After the Grantor signs the trust, he or she must fund it. All probate eligible property must be transferred and titled to the trust. Primary or contingent beneficiaries must also point to the trust. Once this funding is complete, probate will be avoided upon death because the decedent does not own any probate eligible property, it is owned by the trust which continues on. This makes the post death administration much quicker because there is no property transfer required. The successor trustee continues to manage the property for the next set of beneficiaries.
Another great feature of the Living Trust is financial assistance during your life if you become incapacitated. In this case, your successor trustee begins to manage your property for your benefit and can pay your bills. Another court procedure is avoided as no adult guardianship is needed. The Will does nothing for you during your life.
When deciding between the Living Trust vs Will, the living trust is a better choice for most but many people cannot afford the up front costs in attorney fees which range from $2,000 - $5,000. Until recently this initial attorney cost has been a barrier for many but now with the information available on the internet, more and more people are creating living trusts themselves.
By: Robert Olson
About the Author:
Should You Trademark Your Name?
Posted by admin on May 6, 2008
Author(s): Stephanie Paul
Recently, actor Morgan Freeman won the rights to use the domain name www.morganfreeman.com, which was being illegally used by the company Mighty LLC. Freeman had applied last year to the US Patent and Trademark Office to trademark his name, when he found out that Mighty LLC was using his domain name “in bad faith to divert Internet traffic to a commercial search engine.” Ultimately, the arbitrators for the World Intellectual Property Organization (WIPO), the intellectual property arm of the United Nations, agreed with Freeman and determined that Freeman’s illustrious career made his name sufficiently recognizable in the entertainment and movie spheres.
In the always evolving electronic age, many famous personalities are using trademark law to protect the use of their name over the Internet. Trademark law, which prevents confusion between certain goods or services by indicating the source of the trademark, also allows someone to recover a domain name containing their trademark.
A trademark is a word, phrase, symbol or design, or a combination of them, that identifies and distinguishes the source of a trademark. Names of people and companies, business logos and symbols, and particular sounds can all be trademarked. Everything from Julia Roberts’ name, the Nike “swoosh,” and the NBC chimes are registered with the U.S. Patent and Trademark Office. Trademarks identify a product, service, person or thing from others in the same field, and trademark infringement has, and always will be, a serious offense.
What’s in a Name
Anyone can register a domain name for a few dollars, which has led to the abundance of “cybersquatters.” Cybersquatters are people who register domain names that are identical or similar to well-known marks, and then try to sell the domain to the mark owner for an inflated sum of money. This has been done to everyone from Julia Roberts and Bruce Springsteen to the organization PETA and the financial institution Paine Webber.
To protect trademark owners from cybersquatting, Congress passed and President Clinton signed into law the Anti-Cybersquatting Consumer Protection Act in November, 1999. Under the Act, a trademark owner can sue to collect damages and recover a domain name from a person who, with a bad faith intent to profit, registered a domain name that is identical or similar to a distinctive or famous trademark.
The Internet Corporation for Assigned Names and Numbers (ICANN) was also established around this time, which authorized a supervisor of domain name registrations, and adopted an on-line arbitration system for resolving domain name disputes.
Proving Cybersquatter Infringement
In order to have a domain name canceled or transferred to the trademark owner under law, the owner must prove that:
(1) the domain name is identical or confusingly similar to the trademark;
(2) the registrant has no right or legitimate interest in the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Several celebrities have been successful in getting their domain name from cybersquatters under ICANN, including Nicole Kidman, Julia Roberts and Venus and Serena Williams. Others have not been as successful, like Sting and Bruce Springsteen. However, registering a trademark to a name will provide added protection against cybersquatters trying to benefit financially from an already well-known domain name.
Should I Trademark My Name?
Trademark infringement existed before the Internet, but the ease of registering domain names has increased the challenges of trademark rights. Because anyone from high school students to multi-million dollar corporations can register domain names at little expense, it may be a good idea to register your name if you feel it could be threatened by a cybersquatter.
This is especially true for people whose names are also their profession, like actors, car dealers, even fashion designers. Designer Ralph Lauren has had his name trademarked since 1972 for added protection. Fashion designer Donna Karan found her trademark useful when she fell victim to a dispute over her name. A man unknown to her, Richard Wilson, had registered the domain name www.dkny.biz. Karan had already owned www.dkny.com and www.donnakaran.com, and filed suit with the WIPO stating Wilson registered the domain name in bad faith. The WIPO panel agreed with Karan, requiring the domain name to be transferred from Wilson to The Donna Karan Company.
How to Trademark a Name
Anyone whose name also identifies a business or profession should consider trademarking their actual name. If you are considering establishing a trademark for your name, you should first perform a trademark search with LegalZoom or by going to the U.S. Patent and Trademark Office’s (USPTO) Web site at www.uspto.gov , to determine if it is claimed as a mark by someone else. The USPTO reviews trademark applications for federal registration and determines whether an applicant meets the requirements for federal registration.
Please note, if you do not register your name you can still use a mark you have adopted to identify the source of your goods and/or services. Anytime you claim rights to a mark, you may use the “TM” (trademark) or “SM” (service mark) symbol, regardless of whether you filed an application with the USPTO. But, registering your mark will offer you added protection under Trademark Law, including giving you the ability to bring action in court concerning the mark, and obtaining registration in foreign countries. The mark ® can only be used after the mark is actually registered with the USPTO.
