Living Trust vs. Will

You don’t really want to think about dying, but taking the time to think through everything that needs to be done now will save your family a lot of trouble once you do pass and give you the power to make sure your money and assets go to the people you want to have them.

Wills and living trusts are two of your options for making sure your wishes are carried out.

Wills: The Basics

You’re probably already familiar with what a will is, if for no other reason than how often it shows up in movies and TV shows to ramp up some family drama. Of course, wills don’t always result in family spats. In most cases, they’re simply a document that outlines what should happen to someone’s property and dependents (if applicable) after they pass.  

With a will, you can determine how you want your assets and property divided and who in your life should get what. You can also provide instructions for how to pay off any taxes or debt you owe and name who should take care of your children and any property they receive, if they’re still minors.

Wills can get very complicated, but they don’t have to be. Many people’s wishes are simple – they simply want all their assets to go to a spouse or be divided evenly between their children. In those cases, you can often get by with creating a will online and won’t even need a lawyer.

The Pros of Wills

• They clarify your desires for what happens to your property and children (if they’re still minors) after your death.

• They can be very simple to draw up if your property and desires aren’t too complicated.

• Many families can even get by without a lawyer when creating a will.

• You can change them at any time leading up to your death if your wishes change.

The Cons of Wills

• The property included in a will must pass through probate before it can be distributed to the beneficiaries, which can be costly and take a long time.

• Once a person passes, their will is considered a public document and will become accessible to anyone who’s interested in seeing it. That may not be a con for everyone, but can be disconcerting to those concerned about the privacy of their affairs.

Living Trusts: The Basics

Living trusts are similar to wills in many ways. You use them to clarify who should receive which parts of your property after you pass. One of the big differences between wills and living trusts is that when you distribute your property through a living trust, your family can skip the probate process. That can save them a lot of time and some serious cash in lawyer’s fees.

Living trusts don’t only kick in after your death though. You can specify how you want your property managed during your life, including in the event that you become incapacitated. For people suffering from Alzheimer’s or otherwise concerned they may not have the mental capacity to manage their own affairs responsibly through the entirety of their life, a living will can ease some of the possible concerns.

With a will, all of your property stays in your name right up until the moment of your death. With a living trust, you need to transfer your property to the trust. For as long as you’re alive and in your right mind, you’ll be the trustee who manages the trust. Once you become incapacitated or pass away, the trust will move into the hands of the trustee you’ve chosen to take on that role.

Living trusts take a lot more work and investment to set up than a will does, so they’re not right for everyone. They do provide a few key benefits that many people consider worth the extra trouble though.

Pros of a Living Trust

• Your family can avoid probate court.

• You can specify your desires for situations other than death, such as if you become incapacitated.

• They’re private. They don’t become a public document after your death like wills do.

• They’re harder to challenge in court than a will is.

• You can change them at any time leading up to your death if your wishes change.

Cons of a Living Trust

• They’re complicated to set up and will therefore require more time and cost in lawyer’s fees.

• You have to move all the property and assets you want covered by your trust into the trust when you set it up, rather than keeping them in your own name.

Which One’s Right For You?

Pretty much everyone should plan on creating a will.  It’s a fairly basic legal document that makes sure you can take care of your family members and loved ones in the way you see fit after you pass. A living trust is best for those whose desires are a bit more complicated, or who simply want to ensure their beneficiaries receive their property faster and more easily, without the extra step of probate court.

Even those who plan on creating a living trust should have a will as well. Without a will, any property that you may have forgotten to transfer over to the trust or just not gotten around to transferring yet – say, property you inherited or received soon before your death – will be distributed according to the laws of your state, rather than your own wishes. Most lawyers who help clients to set up a living trust will therefore be quick to recommend also keeping a will as backup so you can clarify who should receive any property not covered by the trust.

If you’re not sure if a living will makes sense for you, it may be worth talking to a lawyer or a financial consultant to see what they have to say.  Legal and financial decisions like this are often difficult to make without some guidance. While it requires an upfront cost, talking to a professional that knows the ins and outs of how these documents work can help clarify any questions or concerns you have. If you’re confused or unsure, the cost may easily be worth the peace of mind that it brings.

Kristen Hicks

Kristen Hicks is an Austin-based copywriter and lifelong student with an ongoing curiousity to learn and explore new things. She turns that interest to researching and exploring subjects helpful to seniors and their families for SeniorAdvisor.com.