Wills and trusts are foundational estate planning tools. While each is used to distribute assets to beneficiaries, they do so in different ways. Each also has its own distinct uses and advantages. They’re often used together to close gaps in an estate plan and prepare for multiple scenarios that might otherwise cause unexpected burdens for heirs.
What Is a Will?
A “last will and testament,” or simply, as a will, is the most basic estate planning tool. It provides instructions about what should happen to your assets — including bank accounts, real estate, investments, business assets, digital assets, and personal items — after you die.
Dionysios Pappas, an attorney with the law firm of Vasiliadis Pappas Associates, cautions that “wills do not control disposition of assets you own with others as joint tenants with rights of survivorship, such as jointly-owned bank accounts. Nor do they control disposition of assets that pass by way of beneficiary designation, such as life insurance, annuities, or IRA, 401(k) or other non-qualified retirement plan assets. And they don’t control assets in a trust.” These various items are referred to as “non probate” assets.
A will may direct donations to charity, name a guardian for minor children and provide for the care of pets.
The person who creates a will, the “testator”, names an executor to ensure that the instructions in their will are carried out, and that the legal requirements for administering an estate, such as paying creditors, filing tax forms, and completing probate, are fulfilled. (Probate is the court-supervised process of validating the will, authorizing the executor to assume their duties, overseeing administration of the decedent’s estate, and ensuring that your assets are distributed the way you intend.)
Perhaps most importantly, a will guarantees that you do not die “intestate,” or without a will. Dying intestate leaves crucial estate decisions up to state law and the court, including who will receive your estate and who will care for your minor children.
It is a relatively simple, inexpensive process to create a will. Yet only around one-third of American adults have a will.
Wills should not be confused with living wills. A living will, or advanced directive, pertains to medical treatment preferences and end-of-life care decisions.
What Is a Trust?
A trust is a contractual legal arrangement that allows a third party (the “trustee”) to hold and manage assets on behalf of a beneficiary (or beneficiaries). The person who creates the trust is called the “settlor” or “grantor.”
The grantor can fund a trust with the same types of assets that are typically named in a will. However, the assets are retitled in the name of the trustee, making them the property of the trust — not the grantor. The trustee then manages those assets, and distributes them to the trust’s beneficiaries, according to the terms of the trust document.
Different types of trusts achieve specific estate planning objectives. For example, a “living trust” allows the grantors to serve as trustee and also be the beneficiary, ensuring control over the trust’s assets during their lifetime. When the grantor-trustee passes away or becomes incapacitated a new trustee takes over.
Other reasons to use trusts are to minimize or avoid taxes, provide management assistance to beneficiaries, and to qualify for means-tested public benefits, such as Medicaid.
Trusts, in short, provide more flexibility than wills and allow an estate plan to be tailored to many situations.
Will vs. Trust Differences
Wills and trusts are not mutually exclusive. Both are useful in achieving certain purposes and can work together in an estate plan.
Effect
A will becomes effective only after your death. A trust takes effect as soon as you create it and can distribute property before death, at death, or afterward. But a trust can also be included as part of your will that takes effect after you die and your estate is distributed.
Assets
A will covers any property that is only in your name when you die. It does not cover property held in joint tenancy or in a trust. A trust, conversely, covers only property that has been transferred to the trust. Property must be in the name of the trustee to be included in it.
Beneficiaries
A trust usually has two types of beneficiaries. The “current beneficiaries” receive assets/income from the trust during their lives. The “remainder beneficiaries” receive whatever trust funds remain after the current beneficiaries die or the trust is otherwise terminated.
Probate
A will passes through the probate process, while a trust does not. But a trustee, in administering and distributing a trust, has much the same responsibilities as an executor after the will is probated and the executor officially assumes their duties
Taxes
Trusts generally provide more opportunities than wills, for avoiding or minimizing federal and state death and income taxes.
Cost
It generally costs more to set up a trust than a will. Actual costs depend on the estate’s size and complexity.
Online wills and trusts are available, but using these could lead to errors and clarity issues that throw your estate into chaos and jeopardize your legacy.
Do I Need a Will or Trust?
Anyone with assets that they want to pass on to particular beneficiaries should have a will. Trusts are more appropriate on a case-by-case basis.
One type of estate planning tool is not necessarily better than another. Which tools make sense for you depend on your circumstances and goals.
The attorneys at Vasiliadis Pappas Associates have extensive experience in drafting wills and trusts and can help you decide which estate planning tools are best for you. Call us!