Will versus trust
A Will and/or a Trust can be used to outline your end-of-life wishes. Both are used in estate planning. But what’s the difference between them, and which is the right option for you?
A Will is a legal document created to provide instructions to an assigned Executor appointed by you on how your property and custody of minor children, if any, should be handled after death.
The authenticity of a Will is determined through a legal process known as probate. Probate is the first step taken in administering the estate of a deceased person and distributing assets to the beneficiaries. The Probate Court must officially appoint the Executor named in the Will, which, in turn, gives the Executor the legal power to act on behalf of the deceased to carry out the deceased’s wishes as spelled out in the Will. In the absence of a Will or Trust, the Probate Court must then decide who inherits the assets and personal property you worked so hard for, and how it will be distributed. This will be based on State inheritance laws. Probate Court can become very public and costly, can create hard feelings, with loved ones tied up in the courts for months or even years following your death depending on the size and complexity of your estate.
A Trust is a fiduciary relationship in which the Trust holds title to your property or assets for the benefit of another and appoints a Trustee to manage and disburse Trust property per the responsibilities and instructions you outlined in the Trust document. Your Trustee can be a professional with financial knowledge, a relative or friend, a professional Trust Company, or yourself.
The chart that follows outlines the differences between a Will versus a Trust
| WILL | TRUSTS |
|---|---|
| Ensures that your assets and personal belongings will be distributed as you wish after you die. | Transfers your assets to a Trust that holds title to your property or assets for the benefit of another and is managed by a person called your Trustee. Trusts can go into effect after you die or immediately after created when still living. |
| Allows you to have full use of your property/assets while you are alive. | Some, but not all, allow you to have full use of your property/assets while you are alive. |
| The Probate Court must determine the authenticity of the Will and officially appoint the Executor named in the will. This is a legal process that can delay a beneficiary receiving their assets and can be costly. | Does not have to go through the probate process, thus saving time and money. |
| Depending on the state, the assets could be subject to estate taxes. | Depending on the type of Trust, the assets may not be subject to estate taxes. |
| Covers all property in your name. | Covers only property listed in the Trust. |
| All Assets going through probate become a matter of public record. | Assets named in a Trust remain private. |
| Beneficiaries of your Will are your designated heirs. | Beneficiaries of your Trust fund can be you and/or your designated heirs. |
| Beneficiaries receive benefits after your death. | Beneficiaries can receive benefits while you are alive or after you die. |
| Easier to maintain. | Requires more maintenance as you acquire more assets to list in your Trust. |
The best avenue for you to take will depend on your situation and preferences. For most people with simple estates, a basic Will with bank accounts, retirement plans, and/or life insurance policies are enough to cover their needs. But there are some instances when a Trust could be advantageous, such as when:
- You have a complicated estate.
- Your estate is valued at more than the federal gift and estate tax applicable exclusion amount or your state’s death tax exclusion amount.
- Your income tax bracket is more than 10%.
- You have special needs dependents.
- Your spouse is uncomfortable with or incapable of handling financial matters.
- You own a business.
- You have property in more than one state.
- You intend to contribute to a charity.
- You have special property, such as valuable artwork or collectibles.
- You want to avoid the cost and delay of probate court.
- You want the transfer of your assets to your heirs to be private.
TYPES OF trustS
There are many different types of Trusts, but they all fall into two categories – “Testamentary/After-Death Trust” or “Living Trust”.
TESTAMENTARY / AFTER-DEATH TRUST
The Will establishes the Trust to which the asset(s) are transferred upon death, to be administered by a Trustee. The actual Trust relationship implements only after your death, for the purpose of executing the distributions of your assets, as instructed in the Will. One example, but not the only example, would be a parent leaving an asset to a Trust for the benefit of a minor child. The parent’s Will establishes the Trust to which the asset is transferred upon death, to be administered by a Trustee until the asset is transferred to the child outright at a stated age.
LIVING TRUST
You establish this Trust while you are still alive and designate a Trustee to administer it. It enables you to maintain control over your assets while you are living and specify exactly how those assets are to be distributed upon your death. The Trustee can be a professional with financial knowledge, a relative or friend, a professional Trust company, or yourself. If you designate yourself, you should also establish a successor Trustee to handle the Trust after your death. Living Trusts can be revocable or irrevocable.
Revocable Living Trust – This Trust is the most popular. It allows you, the Grantor or Trustor, to make changes to the Trust during your lifetime. It usually directs the Trustee to pay all income to you for life and to pay the Trust assets to named beneficiaries after your death. This Trust avoids the often lengthy and public probate process. There are some other things to make note of:
- The tax consequences of this Trust are usually the same whether the assets are placed in a Trust or not.
- Transferring assets into a Revocable Living Trust may make you ineligible for Medical Assistance.
- If you are the Trustee, you are considered a fiduciary and are required to follow the terms of the Trust and the law in good faith, with loyalty, confidence, and candor to the beneficiaries.
Irrevocable Living Trust – This Trust is typically set up to reduce taxes. The Trust becomes a separate entity, and the assets cannot be removed nor can changes be made by you. In most cases, you cannot be the sole Trustee without losing the intended estate and/or income tax benefits.
SPECIFIC-USE TRUST
Trusts can be tailored to fit your goals. Here are a few examples of special uses for Trusts:
Charitable Trust – realizes tax savings for an estate by donating the asset(s) in the Trust to a tax-exempt charitable organization or nonprofit. The Trust holds the asset(s) until transferred to the charity. Before transferred to the charity, you can continue to receive income or use the property such as art and real estate, while realizing estate tax savings.
Bypass Trust – Upon death, a spouse can leave assets in a Trust that provides income to the surviving spouse. Upon that spouse’s death, the assets are inherited by the beneficiaries without being taxed.
Special-Needs Trust – helps provide supplemental financial support for a disabled person without jeopardizing qualification for government assistance. Such Trusts can provide a variety of vocational and recreational services, supporting the individual’s dignity and quality of life.
Spendthrift Trust – designed to distribute prescribed amounts of money to beneficiaries at specified intervals. Creditors are not able to take a beneficiary’s income from this Trust.
Do you have Trust needs? Contact us.
This content is intended to be used as a source for general information and is not provided as legal advice.
