Trust vs. Will: Understanding the Difference

In the estate planning world, a Revocable Living Trust and a Last Will and Testament are the two most common documents used to settle estate affairs and pass property and financial assets to beneficiaries. Both offer the ability to name your heirs as well as someone to oversee your estate, and give you the capability of dividing your assets among those you love.

But there are several ways these two documents are different:

Life and Death

A Last Will and Testament, the most commonly known estate planning device, is used to name a person’s final wishes for his or her estate and goes into effect upon the author’s death. This means that no part of the Will can be carried out before the death of the Will maker.

A Revocable Living Trust, on the other hand, is executed while you are still living. It provides benefits to both the Trust maker (known as the Trustor) and his or her beneficiaries. Upon the Trustor’s death, the Trust can be used to settle the estate much like a Will.

Title

With a Will, all assets remain titled in your name until they are transferred to your heirs upon your death. But with a Living Trust, the assets are held in the name of the Trust, making the transfer of property a little bit easier because those assets are not subject to probate.

Probate

All Wills must endure a Probate to pay off debts, court costs and taxes and eventually pass property to beneficiaries. The type of probate required – a full probate or shorter, summary version – depends on the type and value of assets owned.

A Trust can usually avoid probate. To avoid probate, you should maintain your Trust and ensure that it is fully funded. In other words, your assets should be titled in the name of the Trust. If even one piece of your property is not included in your Trust, that property must face probate to either be funded into your trust with a Pour Over Will or to be probated by state law if you have not created a Will.

Taxes

A Revocable Living Trust can often be used to lighten the burden of estate taxes. This is because property will already be funded into the name of your Trust and therefore benefit from the tax planning language in the Trust document. Wills may include tax planning language as well, but the benefit requires a probate (or two if your spouse has the same plan). And, using joint tenancy can destroy the tax language in the Will. Therefore, Trusts are a better vehicle for minimizing estate taxes.

Disability

Because a Trust is executed while you’re still alive, it can contain provisions to protect you and your estate in the event that you become disabled or incapacitated. A Will, on the other hand, cannot be executed until your death so it cannot provide any protection for disability.

Larry Parman
Attorney at Law