Last Wills & Trusts Questions

By Bryan Driscoll, J.D.

Last Wills & Trusts Questions

By Bryan Driscoll, J.D.

Wills and trusts are crucial to ensuring your heirs receive the assets you want them to receive after your death. While they are more common than trusts, a good estate plan uses both documents to help maximize the protection of your assets.

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Creating a will is easier to do. Therefore these are more common and you frequently see them as the only component of the estate plan. It's important to understand the differences and the similarities between these documents so you can make an informed decision about which document, or both, is right for you.

Wills and Trusts

Both are estate planning documents used to pass your assets onto your loved ones when you die. Upon your death, a will is processed through probate where the court distributes your assets according to the document. A trust, however, assigns a trustee upon your death, someone you choose to manage certain assets for your beneficiaries. This can be as simple as holding a vehicle until someone reaches the legal age to drive or as complex as holding financial assets for the benefit of someone's entire life.

Wills must go through probate. There are court costs and attorney's fee associated with this process. Trusts generally cost more to draft but avoid the costs associated with probate. They also provide you with more options for distributing your assets to your heirs whereas wills only allow for a onetime distribution of your assets.

When going through your estate planning checklist, pay close attention to what your goals are for distributing your assets. If you only want to distribute assets once, a will would suffice. But if you want more control over the distribution or if you have an heir or an asset that requires management, a trust would be a better option for you.

Dying Without a Will or Trust or Using Them Together

When you die without either document, the state where you live determines what to do with your assets. Each state has a statute that determines the distribution. But for service, the state takes a hefty fee, sometimes over 50%. To avoid this extreme cost and ensure your heirs receive the assets you want them to receive, create your will today. If you don't, you risk losing half of your assets to the state.

A full and complete estate plan uses both both documents by creating what's called a pour-over will. When you die, it will re-direct all of your remaining assets to a trust you've created, thus pouring over all of your assets into it.

It also directs how you want the assets distributed and to whom. The trustee will then follow your directives ensuring your heirs receive the assets. This serves to give you more control over the distribution but also avoids the expensive and time consuming probate process.

With the right setup of your estate plan, you can ensure your heirs receive the assets you want them to receive while also protecting the assets from unnecessary court costs and fees. Understanding your options and being proactive can save you and your heirs time and money down the road.

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.