A will and a trust are both estate planning tools, but they serve different purposes and operate in distinct ways. The key difference is that a will takes effect after your death and must go through probate, while a trust can take effect during your lifetime and often avoids probate entirely.
What is a Will?
A will is a legal document that outlines how your assets will be distributed after your death. It can also name guardians for minor children and designate an executor to manage your estate. However, a will must go through probate—a public and sometimes lengthy court process—before beneficiaries receive their inheritance.
What is a Trust?
A trust is a legal arrangement where you transfer ownership of your assets to a trustee, who manages them for your benefit or for your chosen beneficiaries. Living trusts, in particular, can be managed while you are alive and seamlessly transition to a successor trustee if you become incapacitated or pass away, often avoiding probate.
Key Differences Between a Will and a Trust
Here are the most significant differences:
- Probate: Wills must go through probate; trusts often bypass it.
- Privacy: Wills are public record; trusts are private.
- Timing: Wills only take effect after death; trusts can take effect immediately upon creation.
- Management During Incapacity: A trust allows a successor trustee to manage assets without court involvement.
- Complexity and Cost: Wills are simpler and cheaper to set up; trusts are more complex but offer more control.
When a Will Might Be the Better Choice
A will may be suitable if you have a small estate, minimal assets, or simple wishes for asset distribution. It’s also the only way to name guardians for minor children.
When a Trust Might Be the Better Choice
A trust is often the better choice if you own property in multiple states, have complex distribution instructions, want to maintain privacy, or wish to avoid probate delays and costs.
Using Both a Will and a Trust
Many people use a combination—a living trust for major assets and a “pour-over will” to capture any assets not already in the trust. This ensures complete coverage of your estate.
Why Legal Guidance is Essential
Selecting between a will and a trust is not a one-size-fits-all decision. Consulting with a qualified probate attorney ensures your estate plan meets your goals, complies with state law, and avoids costly mistakes.
Related Topics in This Series
What is a Living Trust?
Knowing the differences between wills and trusts starts with understanding what a living trust is. A living trust allows you to control your assets during your lifetime and transfer them to beneficiaries without probate.
How to Set Up a Trust
If a trust is right for you, the setup process involves creating the trust document, appointing a trustee, and transferring ownership of your assets.
What Does a Trustee Do?
Trustees have a fiduciary duty to manage assets responsibly, follow the trust’s instructions, and act in the best interest of beneficiaries.
Can a Trustee Remove a Beneficiary?
In rare cases, a trustee may have authority to remove a beneficiary if the trust document allows it and legal requirements are met.
Michael Avanesian, the founder and driving force behind Avian Law Group, is a passionate and dedicated attorney with a strong background in personal injury law. As a partner at JT Legal Group, Michael led the growth of the personal injury practice from a single employee to a team of over ninety professionals, securing over $2 billion in settlements for clients in just three years.
