Posted September 1, 2020 by Will Harnish
As soon as someone hears that I am an estate planner, the first question is always: “So which one should I get: a will or a trust?” In truth, the two shouldn’t be pitted against each other, as a good estate plan will likely utilize both – regardless of the size of someone’s estate. Yet there seems to be an attitude of the two tools being opposed to one another.
And I think I get it. In general, when one thinks of trusts it is easy to associate the idea with complicated, expensive estate planning and “trust fund” kids; two things the everyday person may not relate to. Wills, on the other hand, are usually thought of as the easier, more commonly used method of the two. Entertainment media even makes it seem that wills are used in every situation, as drama is easily added to a character’s death if suddenly the will can’t be found, it’s thought to be a fake, or it gives everything to the maid.
Let’s look at the two with some examples:
Just a Will
Let’s say you were to die with just a will in place. In order for your property to pass according to your will, the will must first be probated. Probate is a court process in which a deceased person’s assets are distributed to creditors and heirs. This probate process includes the court approving the will and who can act to execute the terms of the will, as well as notifying potential creditors and other interested parties. It is a lengthy (read: expensive) process and is of public record.
Provided your will is in order and probated, your property likely passes as you intended, just with a bit of pomp and circumstance in court.
Just a Trust
I like to think of trusts as probate somewhat in reverse. You pay the expense up front and determine who will be authorized to administer the trust and who will benefit from the trust. Property owned by a trust can pass outside of probate, which typically makes trust administration a private matter.
Suppose you create and fund a trust that is to benefit your sister after your death, and you then later die. Because you have already chosen a successor trustee then the court does not need to get involved to appoint someone to distribute property. Because you have a distribution plan already in place then the court, again, does not need to get involved; the property should go to your sister.
The caveat here, however, is that the trust can only control property actually titled in the name of the trust. As such, if your house is not in the trust then it likely won’t pass to your sister but instead be probated and distributed under state law.
Using Both a Will and a Trust
For the majority of individuals, a solid estate plan is going to involve both a will and a trust. The trust allows you to plan ahead and keep assets out of the courts after your death. The will should be executed as a failsafe that essentially transfers any property subject to probate into the trust (this type of will is called a “pour-over will”). While it is an added inconvenience to still have to probate a will when a trust is in place, it is far better than simply letting local statutes dictate how your property is to be distributed. It would be wise to ensure your attorney understands the interplay between wills and trusts and, if they are worth the papers they draft your estate plan on, comb through your assets with you to ensure that a trust is properly funded.
Posted in Estate Planning, Wills, and Trusts.