Deciding whether you want or need a living trust vs. will is a decision that should not be made lightly. Each has its own set of benefits and drawbacks that you will need to consider. But first, it's a good idea to understand what they each are and how they function.
What is a living trust?
A revocable living trust is a document that places most of your assets into a trust during your lifetime. The assets are owned and managed by the trust, but you continue to use your assets as you normally would (living in your home and spending your money as you wish).
After your death, the trust is managed by a trustee chosen by you, who distributes your assets to your beneficiaries at the times you choose.
Benefits of a trust
Many people focus on the benefits of a trust vs. a will. When you use a living trust, you avoid probate costs because the trust does not have to go through a court procedure to be validated as a last will does.
A trust offers other benefits:
- The terms of the trust do not become public record, so your family matters remain private.
- A trust is more difficult to contest than a will.
- A trust gives you flexibility as to how you distribute your assets. You can choose to distribute assets immediately upon your death or at specific dates in the future.
Problems with living trusts
If you are considering a will vs. living trust, you may be swayed by the flexibility a revocable living trust offers, but there are some drawbacks as well.
While a living trust does avoid probate costs, it cannot avoid estate taxes.
Unlike a will, which automatically distributes all of your assets, a living trust can only distribute assets that you specifically place into it, so if you don’t correctly transfer ownership of your assets, they aren’t part of the trust.
When you complete living trust forms, the trust is not fully functional until you fund it. You must change legal ownership of everything—house, cars, bank accounts, and more—to the name of the trust for the trust to control those assets. There are costs involved in setting up the trust and managing it during your life and after your death.
A big difference between a living trust and a will is that a will is simpler to draw up and does not require ongoing management. You can write your will and forget about it. If big changes happen in your life (such as a divorce) you may want to revise it, but most people never touch their will again.
There is no need to change ownership of assets or do complex transfers during your life. There is one fee to create a will and no other costs in your lifetime.
Despite these advantages, wills don’t offer some of the protections found in a living trust. These drawbacks include:
- A living trust provides for management of your finances even if you become mentally incompetent during your lifetime, but a will does not provide this protection.
- Wills don’t allow for any kind of spread out distribution of assets. Beneficiaries receive their share once the will is probated, unlike living trusts which allow you to decide when people will inherit.
- The will is public record for anyone to read.
- If you own property in more than one state, you will need a will to be probated in each state for that property to be distributed, whereas a trust can manage assets in any states.
The best of both worlds
Since wills and living trusts have benefits and drawbacks, one of the most popular options is to create a living trust AND a will.
A living trust is set up, and as many assets as possible are transferred into it. A will, called a pour-over will, is also created. Its function is to transfer any leftover assets into the trust so that all the loose ends are tied up, no assets are left out, and everything can be placed in the trust. If you feel more comfortable with just a will or with just a living trust it is fine to choose one or the other.
How you choose to set up your estate plan is a matter of personal choice. There is no right or wrong answer and the most important thing is that you do create an estate plan so that your wishes are carried out.