Do I Need a Will or a Trust?
When you die, (assuming you have estate planning documents
in place) your property can be passed on to your loved ones in one of two
ways: through a will or a trust. While
each accomplishes the same thing in the long run, there are some
differences in the ways these documents operate.
A will distributes your property after your die. It gives your property to your heirs outright
and with no restrictions. In other words
you can dictate what assets you want to go to what person. But you cannot place any stipulations on how
that asset is to be used. The actual
distribution of your assets takes place through a court-supervised process
called probate. Historically, many
states had very cumbersome and costly probate procedures. As a result, many people began favoring
trusts since it enabled them to avoid probate all together. However, many states responded by changing
their probate processes to make them quick, efficient, and cost effective. Wills are generally simple documents and are
cost effective to create.
A revocable living trust, on the other hand, transfers your property while
you are alive. When you create a trust, you essentially put your assets in an imaginary
pot. Your pot of assets (the trust) is
managed by a trustee for the benefit of named beneficiaries. Often the person creating the trust (the settlor) will establish himself or herself as both the trustee and the beneficiary. This way, the settlor still has control over the trust assets and can still benefit from those assets. Unlike a will, a trust enables you to create rules regarding how your assets are to be used-- both while you are alive and after your death. As a result, you can have control over how your assets are used, even after you have passed away. A trust does not require the
oversight of a court— so it avoids the probate process. Additionally, if you have a taxable estate, trusts are often used to minimize estate taxes. One of the downsides to a trust is that it is generally more costly and
burdensome to create than a will is. For
example, all assets must be retitled so they are in the name of the trust. If you forget to retitle an asset, it will be
subject to the probate process—thus defeating one of the main reasons for the
trust in the first place.
Some people opt to create what is known as a testamentary
trust. Unlike a revocable living trust,
which is created during your lifetime, a testamentary trust is created through
your will and goes into effect when you die.
The will gives directions for the establishment of the trust and sets
forth the rules of the trust. A
testamentary trust can be a good option if you don’t want to create a trust
during your lifetime, but you do wish for assets to be held in a trust after
you die, say for example to provide for children.
So which is best for you?
In a lot of ways, a revocable living trust enables you the ability to
dictate how your assets are used in a way that a will simply cannot
provide. But this advantage comes with a
price. The choice ultimately boils down
to whether a trust will do a better job of accomplishing your objectives and
whether the benefits outweigh the costs.
Ultimately, whether you choose a will or a trust, it should meet the
needs of you and your family. An
experienced estate planning attorney can help you navigate the pros and cons of
wills and trusts, so that you can make a decision that is just right for your