Despite what you may have heard, a will may not be the best plan for you and your family. There are two reasons for this. First, a will does not avoid probate when you die. A will must be validated by the probate court before it can be enforced. Second, as a will only goes into effect after you die, it provides no protection for you if you become physically or mentally incapacitated. That means that the court could easily take control of your assets before you die – meaning, a stranger will take control of your assets and make decisions for you.

A revocable living trust is a simple and proven alternative to a will. It avoids probate and allows you to keep control of your assets while you are living – even if you become incapacitated – and after you die. It is important to understand the differences between a will and a trust before you choose.

What Is A Will?

A will is a legal document that is signed and witnessed. A will is considered a “death” document as it only goes into effect when you die. A will:

  • Provides for the distribution of assets owned by you. It does not provide for the distribution of assets directed to others through beneficiary designations (e.g. life insurance or retirement benefits)
  • Sends assets in your individual name or payable to your estate through the probate process
  • Allows you to appoint permanent guardians for your minor children
  • Names the person you wish to settle your estate (e.g. your executor or personal representative)
  • May or may not include protective trusts for beneficiaries and tax planning. Many wills are simple, short documents
  • Allows you to revoke or amend your instructions during your lifetime
  • Tends to cost less than a trust at the outset but costs more to settle during court proceedings after death

What Is A Trust?

A trust is a legal document, signed and witnessed, and effective during your lifetime, during any period of disability, and after death. Because the trust is effective during your lifetime and you can change it, it is referred to as a “living” document. A trust:

  • Has lifetime benefits
  • Provides for the distribution of your assets
  • Avoids probate, if fully funded
  • Provides for a successor trustee upon your death or incapacity
  • Allows for the management of your property – even if you are incapacitated
  • Can appoint disability guardians for minor children
  • Often includes protective trusts for beneficiaries and tax planning
  • Allows you to revoke or amend your wishes during your lifetime
  • Costs more than a simple will at the outset but much less upon administration, while typically providing significantly more value

Probate: A Key Difference Between A Will & A Trust

One key element in deciding between a will and a trust is understanding the probate process. The term “probate” – which literally means “proving” – refers to the process where a decedent’s will must be authenticated, outstanding legitimate debts paid, and assets transferred to the beneficiaries.

The downside is that probate can take a long time – even years. It tends to be expensive. The entire process is completely public, meaning nosy neighbors or possible predators will know exactly which beneficiary got what and how to contact that person. In nearly all cases, the only upside of probate is that creditor claims are cut off.

If you use a will as your primary estate planning tool, you own property in your individual name, or property is made payable to your estate, your estate must go through probate.

If you use a trust as your estate planning tool, you avoid probate, saving your family time, pain, and money.

The Bottom Line: Wills Vs. Trusts

As everyone’s situation is different, it is important to analyze every aspect of your situation – and what the future may hold – so that you can determine what is right for you and whether probate avoidance, incapacity planning, and trust protections have value to you and those you love. Most people receive the greatest overall benefit from having a trust.

Without an estate plan in place, you and your family are left unprotected. Please contact our office if you would like help choosing between a will and a trust. You do not have to make these decisions alone.

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Disclaimer: Materials prepared by JM LAW, PLLC are for general informational purposes only. Educational material does not create an attorney-client relationship and is not an offer to represent you. You should not act or refrain from acting based on information provided.

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