Wills v. Trusts: How Do I Know What I Need?

Wills versus Trusts: How do I know what I need?

Most people understand that having some sort of an estate plan is a good thing. However, many do not take the first steps to get that estate plan in place because they do not understand the differences between a will and trust and are unsure where to start. So, if you are “fuzzy” about wills and trusts, know that you are not alone.

Many of the documents included in a comprehensive estate plan are similar whether you choose to base your plan around a will or trust. One of the key steps in beginning the estate planning process is determining whether a will-based plan or a trust-based estate plan will best benefit you in your particular situation. You don't have to make this decision alone; this is where an experienced attorney can be very helpful.

As you begin considering your options, here is some additional information to help you understand the characteristics of wills and trusts as estate planning tools.

WILL

The centerpiece of a will-based estate plan is the Last Will & Testament. This document describes who you want to inherit your property, names a executor or personal representative to administer your estate, and might nominate a guardian to care for your minor children or disabled family members. The use of a will as your primary estate planning strategy will likely require the court process known as probate.

Key characteristics of a will-based estate plan:

Does not go into effect until you die
Provides for the distribution of probatable assets you own – that is, assets in your individual name or payable to your estate will be processed through probate. Non-probatable assets will be directed to others through beneficiary designations (e.g. life insurance policies or retirement benefits)
Allows you to appoint permanent guardians for your minor children
Names the person you wish to settle your estate (e.g. executor or personal representative)
Can include protective trusts for beneficiaries and tax planning
Permits you to revoke or amend your instructions during your lifetime
Tends to cost less initially, but can cost more to settle during court proceedings after death

TRUST

In a trust-based estate plan, your trust will be the primary means by which you express your wishes and distribute your property. A trust is legal structure which holds property for your benefit during your life and for the benefit of your beneficiaries after your death. The use of a properly funded trust allows your beneficiaries to avoid the costly and time-consuming process of probate.

Key characteristics of a trust-based estate plan:

Is effective during your lifetime, any period of disability, and after death
Has lifetime benefits
Provides for the distribution of your assets
Avoids probate – if fully funded
Provides for a successor trustee upon your death or incapacity
Allows for the management of your property – even if you're incapacitated
Allows you to appoint guardians for minor children if you become disabled
Can include protective trusts for beneficiaries and tax planning
Permits you to revoke or amend your wishes during your lifetime
Costs more at the outset, but typically less upon administration

What Happens If You Die Without a Will or Trust?

When a person dies without having a will or a trust in place, it is known as dying “intestate.” When this happens, their estate must often go through the probate process. Dying intestate allows state law and the court to decide on your behalf – regardless of what your intent may have been – who will receive what and when.

This is rarely an ideal situation – especially if you have a child under the age of 18 or a disabled child who requires special care. When a parent dies intestate, not having a named a guardian for their minor or special needs children, the court will decide who raises your child. In addition, your children may not have the financial provisions you would have chosen, as their inheritance will be managed by a court-appointed guardian.

How Do I Decide Between a Will-based or Trust-based plan?

Everyone's situation is different. It is important to analyze the key aspects of your situation – and what the future may hold – so that you can determine what is right for you and your loved ones. We recommend evaluating your priorities as they relate to these issues. Some of the most common concerns involve reducing or eliminating the need for probate, maintaining privacy, asset protection, potential tax liability, business succession, and planning for children with disabilities or special needs. A skilled estate planning attorney can be a real game changer in helping you determine what type of plan is best for you and your family. One of the first things you will get to do when you reach out to our team for assistance is to complete a Confidential Estate Planning Questionnaire that is specifically designed to walk you through the process of identifying the key components of your estate plan.