I often get asked whether or not it is better to have a Living Trust or a Will. The reality is that you may very well need both. The real question is: which one should you use as the cornerstone of your estate plan? Each person and family is different, so there are no right or wrong answers here, and there are pros and cons for each.
Before we get into the differences, let's first provide a basic definition of each:
A Will is a document that takes effect when someone dies and it dictates how to distribute the deceased person's property. A will can also appoint a guardian for any children of the deceased who are minors at the time of death. It basically provides a set of instructions for administration of your estate to the probate court.
A Living Trust is a document that dictates how you want your property distributed for your benefit when you are unable to take care of yourself, and how you want your property distributed when you pass away. Most assets properly transferred into a Living Trust will avoid probate all together. If you have a Living Trust you should also have a Will called a Pour-Over Will. The Pour-Over Will "pours" assets into your Trust after you pass away that didn't properly make it into the Trust during your lifetime.
Both a Will and a Living Trust can help you avoid Taxation on your estate. This is because exemption planning can be done within the Living Trust, and within the Will via a testamentary trust created by the Will.
- Less expensive to create than a Living Trust
- No need to transfer any property into a Trust
- Does not avoid probate, which becomes very...
- Costly (most often much more costly due to the probate process than the creation of a trust)
- Time-consuming and frustrating (can take several years to administer)
- Loss of control - the Executors' authority is at the mercy of the courts
- Can be easily contested and even considered void under some circumstances
- Does not activate until death/No incapacity protection - Power to control and manage assets does not transfer if you become incapacitated in any way, and even when used in conjunction with a power of attorney the incapacity protection may not be as effective as a Trust.
- Saves you money - By avoiding the probate process, you eliminate attorneys' fees associated with the probate process.
- Saves you time - By avoiding probate process, you can save yourself YEARS of frustration and wasted time in court
- Protects your privacy - By avoiding probate, your estate administration does not become public record
- Gives you more control over your assets/property even after you are gone - Should you become incapacitated, a Living Trust can allow you to appoint an Incapacity Trustee so neither you nor your loved ones have to go through the courts to pay for the care you need
- Not as easily contested as a will
- Requires initial paperwork (transferring properties, etc.) and can be more expensive than a Will upfront
- The trustee who takes over after you die must manage assets after death or hire someone to do so (so long as the Trust permits them to do that).
Now it may seem that Living Trust-based planning offers many more advantages than will-based planning, but depending on your circumstances you may weigh one advantage much heavier than others. So the answer as to which tool is best is not cut and dry and should be discussed with your family and advisors.
Obviously this is a lot of information to consider, and even though this is a good outline of the advantages/disadvantages of each, it is crucial that you meet with an estate planning attorney when the time is right for you to discuss what would be best for you, your family, and your estate.