Will vs. Trust: Which is Right for You?

Will vs. Trust: Which is Right for You?

June 26, 2017 • Uncategorized

If you’ve decided that the time has come—and it’s never too soon—to make a plan for the distribution of your estate, you probably have many questions.  One of the most common ones is whether you should use a will (Last Will and Testament) to indicate your desires for the distribution of the wealth you’ve accumulated, or a trust. Each has its advantages and disadvantages, and the choice you make will reflect your personal circumstances, such as the size of your estate, your age, whether you owe money to creditors, the number of heirs, whether you have minor children, the types of assets you own, and whether your dependents will need immediate access to funds after your death for day-to-day living expenses.

Wills

A will, or “Last Will and Testament, is a legal document that sets forth a person’s wishes for distributing assets after death, dictating how various accounts and real property assets are to be managed, and providing for the care of dependents, if any. It names an executor, the person responsible, under supervision of the probate court, for seeing that the terms of the will are carried out. You can make changes to your will whenever you wish. You should have your attorney amend your existing will or draw up a new will reflecting the changes you want made.

When deciding between a will and a living trust, you might choose a will over a living trust because it is less complicated and less expensive to draw up, especially if your current finances are an issue and your estate is relatively small and uncomplicated. Your attorney will ensure that your will is properly signed and witnessed and that everything is done correctly to avoid its being challenged after your death.

Is it Important for You and Your Heirs to Avoid Probate?

Probate is the legal process that is required to “prove” or validate a will before the property of a deceased person can be distributed. On the negative side, probating a will is time consuming, costly, and public, which makes it a process that many people would prefer to avoid.  It has a distinct disadvantage, in the amount of time it takes to complete the probate process. If you have a spouse and minor children, they will probably need to have access to funds immediately to handle their day-to-day living expenses and might be seriously harmed by having to wait for probate to be complete.

If your estate is a very large one, everything left in a will could be subject to estate taxes, which can be avoided by using other means to distribute your assets  that remove them from the estate, thereby avoiding taxes.

Ways to Avoid Probate without Establishing a Trust

This problem can be circumvented by putting your assets into a living trust for your heirs; but creating a trust costs considerably more than drafting a will. There are other ways to ensure your family will have access to the money they need without delay, for example:

• Naming your heirs as beneficiaries on a life insurance policy
• Naming an heir as a beneficiary of a Payable-on-Death bank account, certificate of Deposit, or investment account. When you die, the person names as your beneficiary becomes the owner of the account.
• Holding real property in a joint tenancy with right of survivorship
• Gifting assets prior to your death
• Summary administration: In Florida, a smaller estate, $75,000 or less, not including your primary home, is eligible for a streamlined probate process called summary administration. If two years have passed since the death of the decedent, the estate will qualify for summary administration, regardless of the amount of assets.

These all have limitations and restrictions, so you should talk to your lawyer about whether one or more  of these options may be right for you.

Revocable Living Trusts

A living trust is a legal entity into which you can place your assets under management of a trustee- usually yourself, for the duration of your life, as long as your capacity has not been affected. You will name a successor trustee to take over if you die or become incapacitated, and you will dictate the beneficiaries and terms of the trust, including the manner in which the assets are to be managed and distributed. A trust is not a matter of public record the way a will is.

Advantages of a living trust over a will include:

• You are able to avoid probate.
• You can keep the terms of your estate private, as a trust is not open to public scrutiny.
• You can control the management and disposition of your property after your death.
• It is appropriate for any size estate, including those that are too large for summary administration.
• You have total control of your assets during your lifetime.

On the con side, a living trust is more complicated and expensive to create than a will.  It requires active management;  and you need to make sure that all of your assets are placed into the trust.  (You will probably want to back it up with an overflow will that distributes various acquisitions and personal items that were omitted from the trust.)

Irrevocable Trusts

An irrevocable trust is a less common option that is usually limited to the very wealthy, people vulnerable to creditors or lawsuits, or those who must provide for the long-term support of a disabled dependent. Once you place money in an irrevocable trust, it is no longer yours.  The assets have been placed outside your control and into the hands of the trustee you named. It is extremely hard to change the terms of an irrevocable trust; this requires approval of all beneficiaries and the trustee. For some, this is a significant disadvantage.

Advantages to an irrevocable trust include:

• If you are very wealthy, by placing assets in an irrevocable trust, you can keep the value of your estate below the level where it would be subject to federal inheritance taxes.
• The trust’s assets are safe from creditors and judgments.
• You can use it to provide for long-term care of a dependent with special needs, before and after your death.

The Bottom Line

The bottom line: different solutions are required for different people, families, and situations. Discuss the pros and cons of each with your estates and trusts lawyer to determine which type of estate plan—or combination of estate planning tools—is right for you.