The Differences Between a Last Will & a Living Trust

by Beverly Bird
Trusts and wills do not have significant tax advantages over each other.

Trusts and wills do not have significant tax advantages over each other.

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Estate planners sometimes recommend living trusts over wills, but the choice is one of personal preference. Each offers advantages the other does not have, and there are drawbacks to each as well. In some ways, they are very similar. Which works best for you depends on your family situation, your finances and how your want your property distributed after your death.

Probate Process

The biggest selling point for living trusts usually involves the fact that they avoid the probate process. You transfer your assets into the trust while you are alive and the trust owns them and continues to own them when you pass away. Because probate is a process of transferring ownership of your assets from your name into your beneficiaries’ names after your death, trusts can avoid this process. This is particularly useful if you own real estate in another state, which would require an additional probate proceeding there if you bequeath it in a will. Trusts usually require a simple will to back up the trust documents, however. A “pour-over” will is generally necessary to transfer any property into your trust at your death that did not make it into the trust while you were alive, either because you overlooked it or did not have time to transfer it.

Control During Lifetime

Both trusts and wills allow you to maintain control over your assets during your lifetime. Most living trusts are revocable, meaning that if you name yourself as trustee, you can buy, sell and transfer the property in your trust at will. However, a will does not go into effect until you die. You can name a successor trustee in a living trust, someone to manage your affairs if you become incapacitated and unable to do so yourself.

Contests

Disgruntled heirs can contest both wills and living trusts. If your will is challenged, you will not be around to argue the merit of your intentions when you made it. It is usually harder for an heir to contest a trust than a will after your death and if it happens before your death, as is sometimes the case, you can testify regarding your intentions on your own behalf.

Children

Trusts can only deal with physical assets. You cannot use one to name guardians for your minor children after your death. However, if you create a pour-over will to address miscellaneous assets not included in your trust, you can also use it to state who you would like to raise your children if you pass away.

Cost

A will generally costs much less to prepare than a living trust. But a trust can disburse your estate less expensively than a will after your death. The cost effectiveness of each usually depends on whether you want to spend the money now or want your estate to have to spend it later.

Closure

After your death, a will distributes your property after paying your debts, taxes and the administrative costs of settling your estate. Probate then closes. You can devise a trust to continue on for however long you choose after your death. This can be helpful if you want to defer payment to your beneficiaries, such as if you want your children to reach a certain age before they come into the bulk of their inheritances.