One of the most important decisions in your estate planning is to decide if focusing on a will or revocable living trust is best for your situation and desires. The main difference between the two is that a revocable living trust (hereinafter RLT) can accomplish probate avoidance with respect to assets that are transferred to it prior to your death. In some estates an irrevocable trust could also be considered as part of the overall estate plan. A will can also establish a testamentary trust (which is established after your death in accordance with the terms of the will as opposed to a revocable living trust which is established during your lifetime). The decision as to whether to use a will, and RLT, or an irrevocable trust can make a substantial difference in how you leave a legacy after you’re gone. Many people choose to include both a will and at least one trust in their estate, but you need to decide which will channel the majority of your assets.
What is a Will?
According to Investopedia, a will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children. It controls the administration and disposition of any assets titled in your name alone at the time of your death. Without a will, your wishes may not be followed after your death. To make matters worse, the lack of a will could force your heirs to spend additional time, money, and stress to settle your affairs after you’re gone.
Pros and Cons of a Will
- A will can be used to name a guardian for your minor children in the event of your death
- A will is at risk of requiring probate. Probate can sometimes be a fairly simple and streamlined process, but can sometimes cause problems and inconveniences for beneficiaries and loved ones left behind that could possibly be avoided with an RLT. Either way, it costs money in terms of court costs, attorney’s fees, and possibly personal representative fees..
- If you become disabled, whoever holds your power of attorney has to present it to financial institutions and have them accept it before your assets can be managed. If there’s no power of attorney or financial institutions won’t accept it, the courts become involves, says Forbes.
- A will is easier for a contestant to challenge than is a trust.
What is a Trust?
A trust is an entity created to hold assets for the benefit of certain persons or entities, with a trustee managing the trust, says Law.com. There are basically two types of trusts: revocable and irrevocable. Revocable, or living, trusts can be modified after they are created. Irrevocable trusts cannot be modified after they are created, or at least they are very difficult to modify, explains Investopedia.
Pros and Cons of a Trust
- No one other than the beneficiaries are entitled to see your trust documents. They won’t become public record unless an heir or beneficiary files a lawsuit to challenge the validity of your trust, says The Balance.
- A trust provides some protection in the event of disability. Unlike a will, a revocable living trust can prepare your estate in the event you become mentally incapacitated, not just when you die. Your successor trustee can also step in if you become mentally incompetent to the point where you can no longer handle your own affairs. Your trust documents can specify how it should be determined that you are indeed mentally incompetent, such as by certification by your own physician or by a team of physicians who must all concur. Your property would not transfer to your beneficiaries if this happens, as it would at your death. Your successor trustee would simply manage your finances and property for you because you’re unable to do so, explains The Balance. An RLT, however, unlike the common understanding, provides no protection of your assets from creditors, taxing authorities, or your future medical or long-term care expenses. An irrevocable trust might be able to answer this deficiency.
- A living trust at least theoretically provides for a smoother transition of management and ownership of property. Initially, you serve as trustee and manage the property. If you become disabled or pass away, the successor, trustee, or trustees appointed by you will automatically take over management of the property. After you pass away, the trust property is managed and distributed according to the terms of the trust. The courts aren’t normally involved, says Forbes.
- A trust allows you to leave property for the benefit of young children. By law, minors can’t own property. However, a testamentary trust for the benefit of minor children can be established under your will When leaving property to a minor using a living trust, the trustee manages the property until the child reaches an age determined by you, according to LegalZoom.
Get Started on Your Legacy Today!
You don’t have to necessarily choose between a trust or a will. Forbes notes that most estate plans have both a will and one or more trusts. The decision is usually more about which one is more important than the other and will serve as the foundation of the estate plan with the majority of the estate passing through it. If you’re trying to decide how to best move forward with your estate planning, we’re here to help. The decision largely depends on your personal concerns and goals. Let’s talk.
Contact our Fort Pierce office at 772-828-2588 or online.
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The Estate, Trust, and Elder Law Firm, P.L.
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Fort Pierce, FL 34981
772-828-2588
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Okeechobee, FL 34972
863-261-8603
