Will or trust. Trust or will. We hear those terms in tandem a lot when talking about estate planning. But, which is better? Generally, it depends on the individual circumstance; however, more baby boomers are turning to trusts, more specifically, a revocable living trust. Here, we will explain why living trusts are gaining in popularity.
First, let’s define a will. A will is a legal document that directs who will receive your property/belongings upon your death and it appoints a representative to carry out your wishes. A will goes into effect only after you die—and then only after a court has examined it and approved it.
A trust, on the other hand, takes effect as soon as you create it. A revocable living trust is a legal agreement designating a responsible person to manage your assets. It’s called a living trust, obviously, because it’s established while you’re living. It’s revocable because you can change or dissolve the trust at any time at your own discretion and for any reason—as long as you are mentally competent. A living trust, typically, becomes irrevocable (cannot be altered) when you die.
Pros and Cons of a Living Trust
A will and a living trust include instructions on who gets what, when and how. A trust normally is preferred, however, for people who are concerned about privacy and avoiding probate (the legal process of determining whether a will is valid). A living trust doesn’t become part of the public record unless a trustee/beneficiary demands court approval of the documents. Probate records are open to the public.
For smaller estates, wills can be adequate. They are generally less complicated and less expensive than a trust. While it’s true a trust costs more than a will—to create at the outset—a living trust can save a great amount of time, money and frustration in the long run when the creator passes away—simply for the fact you can breeze through the dispensing of the trust without probate court. Probate can eat up much or most of an inheritance in legal costs and delays, not to mention the undue tension it places on family members or loved ones trying to sort out a simple will. For that reason, too, more and more people prefer a trust to minimize costs, hassles and delays in allotting assets and property to those who ultimately receive them.
Living Trust Tips
- It is not necessary to put a large amount of money in a living trust when it’s created. You can fund your trust with as little as one dollar or you can include every asset you own. Some even specify in their wills that their trusts be funded only upon their death.
- A living trust doesn’t require a lot of additional work and cost if you add or delete property or investments. It is not necessary to consult your attorney when your assets change.
- It is necessary to have an attorney prepare a living trust. You do not want to be your own lawyer. There are too many poorly drafted trusts that have left too much money and property in the hands of the state.
- The fee for setting up a living trust can be as little as a few hundred dollars to several thousand dollars depending upon the complexity of the trust.
A living trust is not necessarily for everyone. You should weigh the advantages and disadvantages of a living trust for your particular circumstances. For more modest estates with few assets and investments, it may not be worthwhile to set up a living trust since it involves, initially, more expense than a will.
One issue you can be sure of with a will or living trust is you will have peace of mind knowing your assets and your loved ones will be protected in the event you suddenly become incapacitated and unable to handle your own financial affairs or unexpectedly die.
Trust or will. Will or trust. You should consult an experienced estate-planning attorney to decide which route is best for you and your loved ones.
Wayne Gardner, Attorney
Buntrock & Gardner Law, PLLC
Mesa, AZ 85203