What’s the greatest legacy you can leave behind? Some would argue that it’s a solid estate plan. Designating your beneficiaries in a will or a living trust could be the final gift that’s most appreciated by your heirs. If you cast your last farewell without any property transfer instructions, your estate will be divvied up according to state law in probate court. Probate court is notoriously tedious and stressful, and only partly because those involved are also grieving the loss of a loved one.
You can take control of that process while you are living by documenting how your assets should be shared amongst your loved ones. That documentation is typically handled by a will or living trust. But it’s important to know that these two strategies are not interchangeable. Each has its own features and capabilities.
While it’s common enough to question what is better, a will or a trust? — there isn’t a straightforward answer that’s universally applicable. Whether you need a will or a living trust, or possibly both, depends on several factors, including the value of your estate and whether or not you have minor children.
Living trust vs. will
The role a living trust or will might play in your estate planning is more evident when you understand the basic structure, function, and shortcomings of each. In terms of structure, a will is a legal document that defines how you’d like your estate to be distributed amongst your heirs. Wills are easy to create and can document other important preferences beyond property distribution, such as your chosen guardian for your minor children.
A living trust, on the other hand, is a legal entity that holds your property while you are living and then bequeaths that property according to your instructions after you die. The big advantage of a living trust over a will is that it streamlines the property transfer. After you’re gone, the assets in the trust will be distributed to your heirs without the court’s involvement — which means no probate. Your loved ones will receive their inheritance faster and with less hassle.
Here’s a closer look at how living trusts and wills compare on other key characteristics: setup, the property transfer process, revocability, breadth of functionality, and privacy.
Setup and administration
A will is far easier to set up and manage than a living trust. You do not need a lawyer to create your will; you can actually type up a legally valid will on your home computer. It should specify your full legal name and address, designate your executor, appoint a guardian for any minor children, name your beneficiaries, and list your assets. Print it out, sign it, and have two witnesses sign it as well. Depending on where you live, you may also need the document notarized.
A living trust is more complicated. You’ll first need a lawyer to create the trust. Then, you have to transfer your property into the trust, which can be time-consuming. With real estate, for example, you’d have to prepare and sign a new deed to record that the trust is now the legal owner of that property. You’d also work with your financial institution to update the ownership of your bank accounts and other financial assets. After that initial property transfer, you’d have to remember to put any new assets of value into the trust as well.
Property that’s left out of your trust is handled according to your will if you have one and goes through probate, as discussed below.
Probate and property transfer
Why have a trust? The short answer is to avoid probate. Living trusts transfer your property to your loved ones directly.
If you don’t have a living trust, your estate goes into probate, which is the state-controlled legal process for settling estates. If you don’t have a will, the courts choose how to pay off your debts and distribute your assets. If you do have a will, the probate process will involve validating your will, collecting your assets, paying off your debts and liens, and distributing whatever is left according to your instructions — assuming those instructions don’t violate state law. That process can be lengthy, from six months to two years, depending on the complexity of your estate.
Probate can also be expensive. Lawyer fees and court costs can amount to 2% to 7% of your net worth. These fees are deducted from your assets, reducing the value of what ultimately gets passed on to your loved ones.
Living trusts are often called revocable trusts or revocable living trusts. This is because you can update the trust and its distribution rules while you are living. A will has the same feature. If you decide to shift more of your wealth to a family member in need, you can simply rewrite your will. Your updated wishes will be followed if they are allowed under the laws in your state.
Breadth of functionality
A living trust is a very specific legal entity. It’s designed solely to pass property on to your beneficiaries.
A will has a broader range of functionality. For example, your will defines who will be executor of your estate — that’s the individual who manages the probate process and keeps other beneficiaries informed on the progress of estate settlement. You’d also designate a guardian for your minor children in your will, as well as someone to manage any property on behalf of those children. And, if you have outstanding debts or monies owed to you, your will can document how the debts should be paid, or if the loans you made to others should be forgiven.
Once you pass away, your will becomes a public document. The details of living trusts, however, remain private.
Do I need a will or living trust?
To decide if you need a will, living trust, or both, it’s best to have a sit-down with your attorney. Be prepared to discuss the structure of your family, the composition of your estate, and your preferences for distributing your assets. Key decision-making factors will include:
- Whether or not you have minor children: If you do have minor children, you need a will to designate a guardian for the kids.
- Whether you want to leave property to your children: You cannot use a will to leave property directly to minor children. You can leave the property to another adult to manage on the kids’ behalf. Alternatively, you could use a living trust to facilitate this transfer. The assets would simply stay in the trust until they can be legally turned over to the kids.
- The net value of your estate: In many states, smaller estates qualify for an expedited probate process. If probate is expedited or waived, a living trust may not be advantageous.
- How much debt you have relative to your assets: High debt reduces the net value of your estate. Even if you have substantial property, you may still qualify for expedited probate if you’re carrying high debt balances, too.
- Your standards for privacy: You can keep the intricacies of your estate out of public eye by establishing a living trust. A will does not have that veil of privacy.
- Your health outlook: A living trust can protect you from conservatorship. This is a court process that’s initiated if you become incapacitated and can’t manage your own affairs. Essentially, the courts appoint another adult to care for you and control your finances. If your property is in a living trust, you already have a trustee managing your affairs. That wouldn’t change if your decision-making capacity deteriorates.
Will vs. living trust FAQs
Who should have trusts?
You should have a living trust if you have a sizeable or complex estate, you prefer to spare your heirs the hassle of probate, or you want to keep your estate details private.
Who should have wills?
Most individuals need a will, even those who already have a living trust. You will specify important preferences for your children, your debts, and the management of any property that’s not in your living trust.
Which is better, a will or a trust?
There isn’t a clear winner between a will and a living trust. Wills are easier to set up and manage, while living trusts divvy up your assets among your heirs faster and without court involvement.
Can you have both a will and a living trust?
You can have both a will and a living trust. The living trust would hold the bulk of your assets, so they can be seamlessly transferred to your heirs after you’re gone. The will would specify beneficiaries for any property or debts that aren’t in the trust, along with your preferences for who should take guardianship of your minor children.
Ask two estate planning questions instead of one
It’s a solid strategy to assess your estate planning needs now. But don’t start with the question, “Should I have a trust or a will?” That limits your options to one or the other, when it may be in your best interest to have both. Instead of viewing the revocable trust vs. will as mutually exclusive choices, consider each strategy separately and under the guidance of your elder law attorney or estate planner. Your loved ones will appreciate it.