Will Versus Trust: Which One Do I Need?

You have worked hard your entire life and you have tried to save as much as possible. It is perfectly normal at this stage in your life for you to be worried about such things as wills, trusts, and probate. Deciding whether a will or a trust is best for you comes down to knowing enough about them to make an informed decision. Your best bet is to hire a well-educated estate, trust and probate lawyer to discuss with you the basics of wills, trusts, and probate.

What is a Will?

A will is a document that sets out in a written instrument how and when your estate is to be distributed after your death and to whom, and in what shares, it is to go. A last will and testament sets out your last wishes in a legally enforceable document. Generally a Testamentary Will must be in writing, signed at the end by the testator or testatrix, and witnessed or possibly notarized, and a last will and testament may be self-proven so that the witnesses will not have to appear in court to authenticate that you signed the will and that it was properly signed under state law.

A will may set out and name who the beneficiaries of your estate are and who is excluded from receiving under your last will and testament, and it may even create a testamentary trust for longer term administration and distribution and protection of your estate. You can void a will and make a new will or a codicil to amend a prior will at a later date while you still have sufficient mental capacity to do so.

You generally have to be an adult in order to make a valid last will and testament, and have sufficient mental capacity to understand the people who are important to you and the extent of your bounties, e.g. you must know 1) the extent and value of your property; 2) those who are the natural objects of your bounty; and 3) their desserts, with respect to their treatment and conduct toward you. Or sometimes stated another way, the testator or testatrix must know the natural objects of their bounty, understand his or her obligations to those objects, know the character and value of his or her estate, and the maker must have the capability to formulate a plan of disposition according to their own fixed purpose.

A husband and wife are separate persons and each must make their own separate will, and their wills can be very similar or have very different dispositions. There is no requirement that the wills of the husband and wife be similar, although a surviving spouse may elect to take against the will if the deceased spouse excludes the surviving spouse from his or her will.

What is A Living Trust?

A living trust gives you the ability to manage your estate and property during your lifetime and after your death, by yourself as the initial trustee during your lifetime and by a successor trustee after you decide to step down or at your death. One of the biggest benefits to a living trust is that no court intervention is generally required. You, as the maker of the living trust, are generally the initially appointed trustee of your living trust and you can continue to serve for so long as you desire to serve or until the time that you lack capacity to serve.

Other advantages of a revocable living trust include the possibility that it may simplify matters for your surviving spouse and children; it may avoid probate in multiple states and jurisdictions if you own real estate in more than one state; it may preserve confidentiality of your estate plan and the extent of your estate and your debts; it also may be more difficult for adverse family members if you anticipate a contest; and a revocable living trust can help protect your beneficiaries from having their inheritances taken by their creditors and other claims against your beneficiaries.

When it comes to wills, trusts, and probate, the planning and processes can get complicated. Weigh the pros and cons of each carefully after you talk with your lawyer so that you can make the right decision.