Everyone has heard the terms Wills and Trusts, and both are helpful estate planning tools. However, many people don't understand the differences between the two.
A Last Will and Testament is a legal document that outlines the wishes for the administration and division of an estate after passing. The other important function is to assign legal guardianship over minors.
Revocable Living Trust
A Trust is a legally binding instrument that allows a third party, or trustee, to hold assets on behalf of a beneficiary or beneficiaries. It is a legal document that is traditionally used for avoiding probate and minimizing estate taxes. Like a Will, it outlines the wishes for the administration and division of an estate plan.
Differences Between a Will and a Trust
A Trust can be used to avoid probate, and a Will cannot.
Probate is the process of changing the title on assets when someone passes away. Assets owned in a deceased person’s name with no named beneficiary are no longer accessible once the asset owner has died. For family members to gain access to accounts or other assets in the deceased’s name, they must file a petition with the probate court and wait for the court to approve the Will and appoint the Personal Representative. This can be a lengthy and costly process during which bills cannot be paid and assets cannot be managed. A Trust is an excellent tool to avoid probate because assets owned in the name of a Trust are immediately accessible to the trust maker's designated successor.
A Trust can provide creditor protection for the inheritance you leave to beneficiaries; a Will cannot.
Many people worry that the inheritance they leave to their children will be lost to their children’s creditors, such as a divorcing spouse, unpaid credit card bills, bankruptcy, a business loss, or a lawsuit. Sadly, this is often the case when assets are distributed to beneficiaries via a Will. A Trust allows the maker to safeguard an inheritance from the reach of the beneficiaries’ creditors by keeping the assets out of the name of the beneficiary. Ownership of the assets remains in the Trust. The beneficiary will have access to the assets per the directions you leave in your Trust. You may also allow your beneficiary to serve as Trustee, allowing the beneficiary to manage her own inheritance. By leaving assets to your beneficiaries via a Trust rather than outright via your Will, you can ensure that the assets you worked so hard for will be available to your children and future generations.
Special Needs Protection
A Trust can protect governmental benefits for a person with disabilities. A Will cannot.
If you have a child, grandchild, or another beneficiary with disabilities, then a Trust is a must. If you leave assets to a person who receives needs-based governmental benefits via your Will, it will place your beneficiary in the difficult position of either losing those benefits or transferring the inheritance into a Trust of which the state must be the beneficiary at the beneficiary’s death. Unless the inheritance you are leaving is so significant that the monetary and medical benefits available to the person through programs such as Social Security and Medicaid are no longer important, then making sure that those governmental benefits continue to be available is vital. Leaving assets to a person with disabilities via a Trust is the best way to ensure those governmental benefits are preserved. The inheritance you leave will be available to pay for expenses not covered by these governmental benefits.
Trusts can reduce estate taxes, and a traditional Will cannot.
For married couples, using a Trust in their estate plan can significantly reduce or even eliminate federal and state estate taxes assessed against their estates.
Assets for Minor Children
A Trust can administer assets for minor beneficiaries without court intervention.
Leaving money directly to a minor creates an administrative nightmare because the law provides that a minor does not have the legal capacity to receive assets. The minor's parent also does not have the ability to act as the child’s legal representative until the court says so. As such, if you die with a Will that leaves money to minor beneficiaries, the court will need to appoint a Conservator to receive that inheritance for your children. The Conservator will be required to report annually to the court. The court will appoint an overseer (guardian ad litem) to ensure the Conservator is doing their job for your minor beneficiaries. This means huge costs and long delays in administering funds for minors. It also means that when the minor turns 18, they will be entitled to receive all of those assets and be free to do with them as they wish (think fast cars, spring break, and lots of shopping). Creating a Trust to receive assets passing to a minor, or even to a young adult beneficiary, is the best way to ensure that the court is not involved in the process, that the person you want to manage assets for the beneficiary can do so, and that the beneficiary can use the assets only for purposes you decide are important and/or at ages that you dictate.
With our platform, you don't have to decide on your own. Your estate planning session starts with a series of questions specifically designed by our attorneys. Your answers to these questions give the attorney the information they need to make a document recommendation.