Jason O'Neal • October 7, 2024

When it comes to securing your assets and ensuring your wishes are honored after your passing, understanding the differences between wills and trusts is essential. Both estate planning tools serve the critical purpose of directing how your property is distributed, but they function in distinct ways and offer varying benefits. It is helpful to look into the key features, advantages, and potential drawbacks of each, to determine which option may be best suited for your individual circumstances and goals. Whether you're looking to minimize probate complications, protect assets, or provide for loved ones, a thorough understanding of wills and trusts will empower you to make informed decisions about your estate planning strategy.

1. Definition

• Will:  A legal document that specifies how your assets and affairs should be handled after your death. It only takes effect upon your passing.

• Trust:  A fiduciary arrangement where a trustee holds and manages assets on behalf of beneficiaries. Trusts can be established during your lifetime (living trusts) or created through a will (testamentary trusts).

2. Effective Date

• Will:  Takes effect only upon your death.

• Trust:  Can take effect immediately upon creation, allowing for asset management during your lifetime and after your death.

3. Probate Process

• Will:  Typically requires probate, a court process to validate the will and oversee asset distribution, which can be time-consuming and public.

• Trust:  Avoids probate when properly funded, allowing for faster and more private distribution of assets to beneficiaries.

4. Privacy

• Will:  Becomes a public record once it enters probate, meaning its contents are accessible to anyone.

• Trust:  Remains private; the terms and assets held within a trust do not become public records.

5. Asset Control

• Will:  Grants control over asset distribution after death but does not manage assets during your lifetime.

• Trust:  Provides ongoing management of assets, which can be beneficial if the grantor becomes incapacitated. The trustee can manage the trust according to its terms, ensuring the grantor’s wishes are followed.

6. Modification and Revocation

• Will:  Can be modified or revoked at any time before the testator’s death, provided the proper legal formalities are followed.

• Trust:  Revocable trusts can be changed or revoked during the grantor’s lifetime. Irrevocable trusts, however, cannot be altered or revoked without the consent of the beneficiaries or a court order.

7. Asset Types

• Will:  Can cover a wide range of assets but generally must go through probate to transfer ownership.

• Trust:  Can hold a variety of assets, including real estate, bank accounts, investments, and personal property, and can facilitate immediate transfers without probate.

8. Guardianship

• Will:  Allows for the designation of guardians for minor children, specifying who will care for them after your death.

• Trust:  While a trust can provide for the care of minor children through a testamentary trust, it doesn’t directly appoint guardians. This must be specified in a will.

9. Tax Considerations

• Will:  Does not provide tax advantages on its own. Estate taxes will be assessed on the total value of the estate.

• Trust:  Certain types of trusts (like irrevocable trusts) can offer tax benefits, helping to reduce estate taxes or protect assets from creditors.

10. Cost and Complexity

• Will:  Generally simpler and less expensive to create but will incur costs related to the probate process.

• Trust:  Often more complex and potentially more expensive to set up due to drafting and management considerations but can save on probate costs and provide greater control over asset management.

11. Incapacity Planning

• Will:  Does not address what happens if the testator becomes incapacitated; it only takes effect after death.

• Trust:  Can provide for the management of assets in the event of the grantor’s incapacity, with the trustee stepping in to manage the trust without court intervention.

Both wills and trusts serve important functions in estate planning, and the best choice often depends on individual circumstances, goals, and preferences. Consulting with an estate planning attorney can help tailor a plan that best suits your needs.