A Last Will and Testament or a Living Trust… Which is better?

The two most well-known estate planning documents are a Trust and a Will. These are the two main documents that you should have created in your estate plan in order to protect your loved ones. However, there are a few differences between the two estate plans. The main difference between a Will and a Trust is when they become valid and the method of distribution for your remaining belongings or assets. If you have children, a spouse, property, bank accounts, and other assets, it is vital to make sure that your loved ones are aware of your last wishes for the distribution of the items you have worked hard to create throughout your lifetime. Having an estate plan, whether it is a Will or a Trust, creates a sense of security that if anything were to happen to you, your remaining belongings would not be left to the courts to decide on their distribution. Most importantly, this would also create a sense of peace and security for your loved ones. 

What is a Will? 

A Last Will and Testament is a written document that lists specific instructions for how you would like your remaining assets to be distributed if anything were to happen to you. Items that may be included in your Will are listed guardians for your minor children, individuals who should inherit your remaining property, the distribution of your financial accounts or stocks, as well as any item that is of worth and value to you. A personal representative also known as an executor is someone listed in the Will who you trust will make sure to execute your wishes properly. 

Having a Will created reassures that your decisions for who will inherit your remaining assets (belongings) follows through. You also obtain the option to revise your Will if you wish to disinherit any individuals such as a child or spouse under certain circumstances. A Will may be created to be as specific as you wish. Some individuals may choose to address in their Wills how the beneficiaries may use their remaining assets. The main items that are generally included in a Will are: an appointed executor (personal representative), beneficiaries (inheritors), guardians for minor children, as well as instructions for distribution. It is important to revisit and revise your Will if there are any major life changes such as a birth of a child or marriage. 

Each state has different laws and regulations about how to create a valid Will. It is generally recommended to have an estate planning attorney draft your Will. Read our blog article for more information with how to properly create a valid Will in the state of Florida – Creating a Will in the State of Florida. 

What is a Trust? 

Another common estate planning term that is often used is creating a Trust. A Trust is a document created that lists the property or other assets (stocks or accounts) you would like distributed to your beneficiaries if anything were to happen to you. Having a Trust created helps you better control how your property or assets will be managed and distributed. You may list specific instructions in a Will for the distribution of your assets; however, a Trust document usually is further imbedded with certain rules and regulations that you would like your beneficiaries to follow. An example of this would be listing that the funds from your accounts not be distributed to your children or beneficiaries until they turn 21 years old. Another example is that you may list that you allow the beneficiary to live and stay in your property, but you do not allow them to rent or sell the property. The person creating the Trust is referred to as the grantor or trustor and they must be over the age of 18 as well as have the mental capacity to create a Trust document. If the Trust is set up through a Will, the term testator will also be used. A trustee is a person who oversees that the assets listed in your trust are distributed according to your demands. There may also be co-trustees recorded that can include a person or a company that oversees the administration of your trust. It is generally recommended to also list a successor trustee that may take over the administration of your Trust in case the first trustee listed is unable to. 

The two different types of trusts that can be created are revocable trusts and irrevocable trusts. The main difference between the two trusts is that a revocable trust, like a Will, may be revised or amended anytime throughout the trustor’s life. Usually, a Pour Over Will is created with the revocable trust. If anything were to happen to you, your assets listed in the Will “pours over” into the revocable trust. The trustor may not revise or amend an irrevocable trust once the funds or property are transferred. However, an irrevocable trust generally cannot be changed or amended after it has been created. There are benefits for creating either type of trusts. Read our blog article for more information about the two different types of trusts – Revocable v. Irrevocable Trusts: What Is the difference?

Which is better? 

If you ask any estate planning attorney, it is always recommended to create both a Will and a Trust. Creating both a Will and a Trust allows a sense of security for you and your loved ones that your assets are properly distributed according to your wishes and demands. 

Another main difference between creating a Will and a Trust is a sense of privacy. Having a Will created does not fully avoid your family or loved ones from having to go to court. If anything happens to you, your loved ones will have to hire a probate attorney in order to open a probate case for the distribution of your remaining assets. The process of having to open a probate case can often be lengthy and can create disputes among family members if they believe an individual is not following through with your wishes and demands. Your Will must be documented and entered as a file into the probate case which then becomes public access for anyone to review. Having a valid Will created certainly helps your loved ones throughout the probate process, however, the information does become public record. 

There are pros and cons to have a Will based plan or a Trust based plan and it really depends on your unique situations and goals.

Conclusion

As previously stated, the best way to create a sense of security for yourself and your loved ones is to talk to an estate planning attorney about creating both a Will and a Trust. There are many advantages and disadvantages with creating either estate planning documents. It is always recommended to first speak with an estate planning attorney within your state of residency who would be able to speak to you about your wishes and demands and provide the guidance needed for which estate plan works best for your interests. 

If you are interested in learning more about which Estate Plan would be best for you, we are happy to assist you. You may contact us today to schedule an estate planning consultation with our attorney.

As a reminder, the information provided on this blog article is only to be used for general informational purposes and not intended to be used as legal advice.  

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