5 Important Differences Between Wills and Trusts

Have you ever wondered about the differences between wills and trusts, especially when caring for special needs loved ones? In the simplest terms:

Wills:Trusts:
  • leave your assets in your name while you are alive and gives instructions on how to distribute those assets upon your death.
  • move your assets into the name of the trust while you are alive and give instructions on how those assets are to be used or distributed when you are incapacitated or after you die.
  • typically requires probate after your death.
  • may not require probate.
  • name a personal representative to handle your estate after you die.
  • name a successor trustee for when you are incapacitated or after you die.

A will and a trust both serve important functions, and one isn’t better than the other, only different. The information below will give a bit more detail to the simple list above.

Differences Between Wills and Trusts

1. Trusts Are Active When You are Alive:

A living trust, also known as a revocable trust, functions during your lifetime. Unlike a will that remains dormant until after your passing, a living trust starts operating the moment it’s established. This proactive nature enables you to oversee the management of your assets, granting you direct control and flexibility in how they are utilized or distributed. By designating yourself as the trustee initially, you retain full authority to manage and modify the trust as needed.

Additionally, you can outline specific instructions for the distribution of assets, ensuring they are disbursed according to your wishes, even if you become incapacitated. This empowerment during your lifetime stands as a fundamental difference, making a living trust an efficient and adaptable tool in managing your estate.

A will, on the other hand, only becomes effective upon your passing, which may lead to potential challenges in addressing immediate financial or healthcare needs while you are alive but possibly incapacitated. Without a living trust, decisions regarding your assets may need court intervention if you become incapacitated, causing delays and complexities that a trust could have otherwise mitigated.

2. Trusts May Offer More Privacy and Efficiency:

When considering estate planning, the aspect of privacy may hold significant weight. A living trust offers a level of confidentiality that a will may not. If the will goes through a formal probate court proceeding, it may become part of the public record. This public exposure can lead to various challenges, such as attracting unwanted attention, causing potential disputes, and delaying the distribution of assets. In contrast, a living trust operates privately. Since it may not go through probate, the details of your estate remain confidential, shielded from public scrutiny. This confidentiality not only preserves your family’s privacy but also contributes to the efficient management and transfer of assets.

Moreover, the efficiency inherent in a living trust streamlines the process of asset distribution. Without the constraints of probate, assets held in a trust can be transferred to beneficiaries swiftly and without unnecessary legal hurdles. This expeditious transfer saves time and minimizes costs, allowing your loved ones to receive their inheritances promptly and with fewer complications.

For individuals with small estates, or few beneficiaries, a will may meet their needs and an informal probate may expedite the probate process.

3. Trust May Include Special Needs Provisions:

For families with special needs dependents, a living trust offers a powerful avenue to ensure ongoing care and financial support. Within a living trust, you have the ability to incorporate provisions specifically tailored to meet the unique requirements of your loved ones with special needs.

By appointing a trustee, someone you trust implicitly, you establish a framework for the management of assets on behalf of your special needs family member. This trustee becomes responsible for ensuring that the assets within the trust are utilized in a manner that supports the well-being, healthcare, and other essential needs of your dependent. Furthermore, the trust can delineate instructions for the distribution of assets over time, ensuring a consistent and sustainable level of support for your loved one throughout their lifetime.

Without such provisions in place, a will alone may not adequately address the intricacies involved in safeguarding the future of a special needs family member. Wills primarily distribute assets outright to beneficiaries, potentially jeopardizing vital government benefits or support systems available to individuals with special needs. In contrast, a living trust offers a structured mechanism to provide ongoing support while preserving eligibility for crucial assistance programs. Its flexibility allows you to create a tailored plan that guarantees a lifetime of care and security for your special needs family member.

4. Both Trusts and Will Provide Flexibility and Adaptability:

Both wills and living (revokable) trusts can be changed after they are created, as long as the individual is alive and able to make decisions on their own (not incapacitated).

A will is changed by creating a document named a codicil. A trust is changed by creating a document called an amendment. If there are significant changes, a will may be revoked and a new will can be created. With significant changes to a trust, the trust may be restated (which means all of the language may be changed but the trust itself is not revoked) or it may be revoked and replaced if needed.

In both circumstances, you will likely need the assistance of an attorney, and you must resign and have the appropriate witnesses and notary seal and signature.

5. Trusts Provide a Seamless Transition:

Perhaps one of the most significant benefits of a living trust is the streamlined and seamless transition of assets. When compared to the probate process required for a will, a living trust frequently offers a faster and more efficient path to distributing your assets to beneficiaries. By avoiding the probate court, the assets held in the trust can be transferred directly to the designated beneficiaries without the delays and complexities often associated with probate proceedings. Please note, with both a will and a trust, debts must be paid before assets are distributed to beneficiaries.

This expeditious transfer minimizes the financial and emotional burdens on your loved ones during what can already be a challenging time, allowing them to focus on supporting one another rather than navigating a lengthy legal process.

Additionally, the seamless transition provided by a living trust may contribute to a cost savings. While Trusts are typically more expensive to create in the beginning, probate proceedings can involve various fees, court costs, and legal expenses that may erode the value of the estate. By sidestepping probate, a living trust helps preserve the estate’s assets, ensuring that a more significant portion is passed on to your beneficiaries.

Next Steps

In weighing the differences between a will and a trust, it’s crucial to recognize the distinct roles each plays in estate planning. A will primarily operates posthumously, outlining the distribution of assets upon one’s passing. Conversely, a trust, particularly a living trust, stands as a proactive instrument that commences its function immediately upon establishment, enabling ongoing management of assets and potential provisions for special circumstances.

Your next steps in crafting a robust estate plan involve a careful assessment of your family’s needs and a comprehensive discussion with legal experts well-versed in estate planning, such as the specialized team at Alan R. Harrison Law. They can guide you through the intricacies of both wills and trusts, helping you understand how each aligns with your unique circumstances and objectives. By gaining a deeper understanding of these options and their implications, you’ll be equipped to make informed decisions that best serve the future well-being of your family, especially those with special needs. You can take a look at our website, or give us at call at the office to discuss your options.

Remember, estate planning is a personalized endeavor, and the most effective approach considers your specific goals, family dynamics, and financial circumstances. Engaging in these discussions and seeking professional counsel empowers you to establish a comprehensive estate plan that reflects your intentions and safeguards your family’s future.