Will Vs. Trust: What’s the difference?
As a single woman with 2 four-legged children, I knew I wanted to document "guardianship" for my fur-babies in the event of my unfortunate demise. But what about the rest of my "stuff"? How was I supposed to document my wishes for my siblings, nieces, nephews, closest friends and charities close to my heart? Would a will or trust take care of the needful? I mean, as a NOT-ga-billionaire (that's a technical term, I'm sure), would I possibly benefit from a trust? I heard that trusts were super-expensive to create. I heard I only needed a trust if I had LOADS of money to bequeath.
I have long since gotten the answers to my questions, and with my own revocable trust in place, I still hear many friends ask, “What is the difference between a will and a trust?” There are a few similarities, but a lot of differences also. In both cases, these documents are a part of your estate plan – to have a complete estate plan, there are also powers of attorney for medical and financial purposes and other documents needed.
Similarities between a will-based plan and a trust-based plan:
Exercising Control: Both a will and a trust allow you to control who gets your assets at your death, how those people/entities get your assets, and who is in charge of making financial decisions at your death. The levels of control do vary with trusts enabling more control.
Amendments: Both wills and revocable trusts are “set in sand”, meaning you can change them provided you have the mental capacity. Both documents are “set in stone” upon your incapacity or your death.
Differences:
Probate Avoidance: A trust will avoid probate if funded properly. A will does NOT avoid probate - it merely tells a probate court where the assets go.
Public v. Private: In most states, probate is costly, time intensive, and most documents are public record. If done properly, trusts will be far easier to administer and can be done privately.
Control during your Lifetime: A trust allows you to control what happens now, if you become incapacitated, and what happens at your death. A will only controls what happens at your death.
Cost: One of the biggest knocks against trusts is that they are supposedly a lot more expensive to set up than wills. This is no longer the case if done correctly.
Other Items to Note:
Why do I need a will if I already have a trust? When you have a trust-based estate plan, you also have a will. If you did not put all of your assets into your trust, the will would govern at your death. The beneficiary of your will is your trust – this is what is referred to as a “pour over will” because it pours all of your assets into your trust at your death. Additionally, in a number of states, the will is the primary place where you can name guardians for your minor children.
What if I have named beneficiaries? If you have named beneficiaries on assets (life insurance or retirement accounts for example), the beneficiary designation controls! This is why it is important to make sure your beneficiary designations are in line with your estate plan.
Which one should I do? In most cases, if you are trying to space out distributions for your beneficiary (think minor children), avoid probate, desire privacy, and want to exercise more control, you should consider a trust-based estate plan. If all of your assets are passing by beneficiary designation and there is no reason to hold things back from your adult beneficiaries, a will-based estate plan could be sufficient.
If you're ready to move forward with documenting your wishes for the ones you love, I'd be happy to help you through the process. I promise you'll actually sleep better at night. Feel free to reach out with any questions!
