Will or Living Trust – Which Should You Choose?

Published In Law

May 27th, 2016

The best answer is “both,” and the good news is that with a living trust your will can be a short, one-page document that would simply “pour over” to the trust any property that you had not yet placed into the trust — such as your new car or that winning lottery ticket — at the time of your death.

A living trust, unlike a will, also has the added benefit of enabling a person that you select to take over management of your assets, without the need for anyone to go to court should you become incapacitated and needing someone to assist you in the management of your assets.

Wills and living trusts both can accomplish the same goal: to distribute your assets to those you select after your death. It’s just that a living trust can do so far more efficiently, more privately, and often much less expensively.

Because wills and living trusts can be used to accomplish similar goals, but do so in different ways, it makes sense to understand the basics of how each approach works and, at the same time, recognize the almost infinite number of variations on each.

Living Trusts

With a living trust, which you establish while you are alive, you can transfer title to everything you own — home, car, non-retirement investment accounts, money, and almost anything of value — to the trust. You typically would be named the trustee of your own living trust so you can manage the assets yourself. You could also easily add assets to the trust and remove assets from the trust. If you lose your ability to manage the trust, the person you designated in the trust as your successor trustee can easily step in and take over without skipping a beat, or getting court approval.

Upon your death the person you designated as your successor trustee will simply be able to distribute the assets to the beneficiaries you specified in the trust.

A number of features make living trusts attractive: a living trust avoids the costs and delays of probate; you have more flexibility to designate when and to whom distribution should be made after your death; you can change the living trust without the formality of making a codicil (a formal amendment) to an existing will or making a new will; and you can close it.

A living trust also helps by avoiding probate if you own real property in another state, again avoiding court involvement and legal costs.

As additional benefits, a living trust typically is far more difficult to contest, and, since the living trust rarely becomes a public document, your assets and beneficiaries remain private, something that does not happen if your estate goes through probate.

Downsides: Even so, you need to consider some negatives before establishing a living trust. Establishing a living trust often costs more than writing a simple will.

With a living trust, you’ll want to transfer legal title to all your assets and place them into the living trust. That takes a bit of time and effort, as you typically have to notify your bank and brokerage firm to retitle the accounts, and prepare and file a new deed for your real estate holdings.

To the extent that you do not transfer all assets to the living trust — perhaps because you forgot, or acquired the asset later, or it may not have made sense to (such as with a car) — such assets would belong to your estate, rather than the living trust.

All assets that are not in the trust but are held in your name would still need to go through probate. That is why with a living trust you still need a will. However, the will — known as a pour-over will — can then be a very simple document. The pour-over will simply directs that all your assets not in the living trust should be inherited by the living trust and then managed and distributed as part of the living trust assets.

As most people do place the great bulk of their assets in the living trust, the value of the odds and ends not in the living trust is likely to be very low. Probate of these odds and ends is usually qualified for the state’s very simple and inexpensive Small Estate procedures.

Wills

A simple will, if properly signed and witnessed, tells the probate court how you want your property to be distributed after you die, and the person you want to execute the wishes set out in the will. That person is called the executor or personal representative.

A will does not become effective until after you die, and then only after it is admitted to probate by the probate court in your county. The probate court typically appoints the person you designated to serve as executor to handle your estate, but may require him or her to file periodic reports.

A will-based estate plan can offer a number of benefits: It often is easy and less expensive to establish; it requires little, if any, management during your lifetime; and it can name a guardian for minor children.

Downsides: At the same time, a will-based estate plan has some potential negatives and complications:

  • Wills do not automatically take effect on death, creating a period of uncertainty. Before anyone can act under the will, the local probate court first needs to determine that the will is valid. Notice has to be given, and an opportunity for making objections has to pass. That process takes time and can be expensive. If the will is contested or challenged after your death, that can tie things up for a long time. Also, all wills become a matter of public record, so anyone can read it, see to whom you plan to leave your assets and in some cases, what they are worth.
  • If you own real estate property in several states, there would have to be separate probate in each of those states in order to transfer real property to the beneficiary. This can take time and may be expensive.
  • If you dispose of property that was intended to go to one child, that child could wind up with nothing. For example, let’s assume your will provides your house is to go to your daughter and the balance of your estate — which is approximately equal to the value of the house — to your son. Let’s further assume that you later sell the house and put the proceeds into bank accounts. Unless you change your will, your daughter could wind up with nothing and your son would get everything.
  • If you rely solely on a will, it is vitally important to also have a durable power of attorney that designates a person to act for you should you become incapacitated, perhaps as a result of accident or illness. If you do not designate a person, via a durable power of attorney, to handle your affairs, or that person becomes unwilling or unable to serve, the probate court will appoint someone, typically called a Conservator, to take on that management task. A conservatorship can be a potentially very costly and cumbersome process.

So Which One, Will or Trust?

Your answer truly depends on your personal preferences, priorities, and your particular family situation since neither a will nor a living trust is the best for all situations.

Not surprisingly, a combination of the two is a popular option. In other words, you set up a living trust and also write and properly execute a will that applies to any assets left out of the trust.

And Just One More Thing…

When considering using a will, a trust, or both, remember that there may be other assets that would be payable to someone on your death that already have beneficiary designations.

For example, many retirement and savings plans (such as IRAs, 401(k) Plans, and Roths), and most life insurance policies, use their own beneficiary designations, and would go directly to the persons you named in those designations, regardless of what you may have intended and written into your will or trust! The same is true of any bank or brokerage accounts with beneficiary designations or “pay on death” instruction. They, too, go to the specific beneficiaries named, rather than persons named as beneficiaries in your will or living trust.

If you are confused by all the possibilities — and there are many variations on both wills and trusts — and what is best for your family, you might consider working with an estate planning attorney to determine the best approach for your situation.

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