Establishing an estate plan that clearly lays out your instructions for asset distribution is one of the greatest gifts you can give to the people you care about. Two of the most important ingredients to ensure your assets and loved ones are protected are wills and trusts. These legal instruments are often confused with one another, making it difficult to discern which option is right for you. What are wills and trusts? How are they different? When should you use wills vs trusts?
What follows is answers to these questions (and more), to help you make the best decisions for your family, and your legacy.
What are Wills and Trusts?
Wills and trusts both outline instructions for how you want your assets distributed, so you’ll see some overlap in what each is capable of doing, and the advantages and disadvantages of each. One of the major differences is when and how each becomes effective.
A will is considered a “simple” document, providing instructions for how you’d like your assets to be distributed. In your will, you’ll name an executor who will be responsible for distributing your assets per your wishes. Additionally, a will allows you to name a guardian for minor children and pets, forgive debts owed to you, and provide any additional instructions for such matters as funeral arrangements, and how taxes should be paid.
A trust is a bit more complicated than a will, establishing a separate legal entity that holds legal title to your assets, and naming a trustee to manage and distribute those assets on your behalf, should you become incapacitated or pass away.
While there are many different types of trusts, they can all be classified in one of two ways:
- Revocable (Living) Trust: This document allows the trustor to create the trust, retitle assets to the trust, assign a trustee, and make alterations, amendments, or terminations while they are living. This type of trust allows you to make an impact while you’re still alive, while giving you the flexibility to easily make amendments as life circumstances change.
- Irrevocable Trust: This type of trust also assumes asset ownership, but cannot be altered, amended, or terminated by a trustor without the permission of his or her beneficiaries. While more restrictive than revocable trusts, this type of trust offers tax benefits that a revocable trust does not.
Will vs Trust: What’s the Difference?
Both wills and trusts will help you handle your estate planning affairs, but there are some key differences that may help you decide whether your unique situation requires one or the other—or even both—options.
- Effective Date
As aforementioned, one of the key differentiators of wills and trusts is when they go into effect: a will goes into effect upon death, while a trust becomes effective immediately upon funding and signing it.
- Privacy and Probate
All wills must undergo an often-arduous, time-consuming, and expensive probate process, which becomes public record and is accessible to anyone. Trusts, on the other hand, are not subject to probate and remain private. This can make trusts an attractive option for those seeking a faster and more private estate administration process for their beneficiaries…and one that is protected from the challenges often presented in probate court.
- Property Coverage
A will covers any property solely owned by the grantor at the time of death, but does not cover property held by a trust, or any jointly owned property. A trust will only protect the property that has been transferred to it. Anything outside the trust may be subjected to probate.
- Cost, Complexity and Maintenance
Wills created by an estate planning attorney often contain more complex terminologies, but a will can be extremely simple, with some states even allowing handwritten wills. This simplicity keeps the cost of creating a will at a minimum and, since wills are typically only revised for major life events, maintenance costs are also low.
Since trusts require you to fund them by transferring title to your assets, they can be more complex, and it is highly recommended you work with a trust attorney to ensure your trust is fully funded, supported by proper documentation, and kept up-to-date as you acquire new assets, and as life changes. This continuous maintenance can add additional costs, but ensures you’ve got 100% of your bases covered.
Will vs Trust: Which one is right for me?
The first step in answering this question is to assess your situation, needs, and goals. Things like your age, wealth, marital status, minor children, special needs, and unique requests play a pivotal role in making this decision. Most people need a will, but a trust is not vital for everyone. Enlisting the help of an estate planning and trust attorney is always the best option to find the estate planning solutions that best suit your needs. Contact Miller Estate and Elder Law to begin your custom-tailored estate plan, or register for our next FREE estate planning workshop today to learn more about estate planning and asset protection.