Difference Between a Last Will and a Revocable Trust

By Cindy DeRuyter, J.D.

Difference Between a Last Will and a Revocable Trust

By Cindy DeRuyter, J.D.

Nearly everyone can benefit from some type of estate planning. For some people, the best tool for planning what happens to estate assets after they pass away is a last will and testament. Others find revocable trusts better meet their needs.

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Both wills and revocable trusts are common ways to plan who should receive estate assets and who will be in charge of estate administration. However, there are key differences between the two types of documents. Understanding these differences can help you make informed decisions about your own estate planning.

Probate Considerations

Probate refers to the court process of administering someone's estate and distributing assets according to the deceased person's will or according to state law if there was no will. Your state's laws determine whether part or all of your estate needs to go through probate court after you pass away.

Assets inside a revocable trust generally avoid probate court, even if probate is necessary for other estate assets. By avoiding probate, trust assets avoid the hassle, time, and expense associated with that process. Probate is also a public proceeding, meaning any member of the public could view the will and see what assets were in the estate and who inherits those assets. In contrast, assets inside revocable trusts are not subject to public scrutiny.

Estate Administration and Controls

When you use a will as your primary estate planning document, the will is not administered until after you pass away. At that point, probate serves to "prove" the will, and assets are administered and distributed according to the will's terms. There can be delays in accessing funds and information when a will is the primary estate planning instrument as probate requires certain procedural steps.

After appointment by the court, the personal representative named in the will handles estate administration. Assets that pass to heirs through wills are generally distributed as soon as practical during the estate administration process. The role of personal representative is short-lived, terminating when valid claims are paid and the estate has been fully distributed.

In contrast, revocable trusts are "living" trusts. When you create a revocable trust, you can retitle or transfer assets into trust immediately so the trust holds title right away. This gives your named trustee seamless control over trust assets when you pass away, making trust administration fast and smooth.

Most people are trustees of their revocable trusts during their lifetimes. So, the trust agreement should name one or more successor trustees who take over during periods of your lifetime incapacity and when you pass away. The trustee manages the trust according to its terms. Where assets passing through a will are distributed to named heirs and devisees during probate, assets inside a trust may be managed in trust for heirs for years or even decades. This gives you the ability to exert control from beyond the grave for young or financially-irresponsible beneficiaries.

Other Planning Considerations

There are other factors to consider when deciding to create either a will or a trust, including the types and locations of your assets and whether state or federal estate taxes apply.

Another consideration is the upfront expense. Wills are typically faster and cheaper to create, although the administration process after death can be more involved. Revocable trusts usually cost more money and require more effort initially, but the trade-off is faster, smoother administration when you pass away.

Do you need a will, a revocable trust, or both? The answer depends on the size and type of assets in your estate and your goals. When you are ready to create your estate planning documents, consider using an online service provider that walks you through each step of the process. Alternatively, you can work with an estate planning attorney licensed in your state who can help you draft and execute your documents.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.