Hyden, Miron & Foster, PLLC Law Blog

Friday, February 11, 2022

What is the Difference Between a Will and a Living Trust?

Estate planning is an essential way of protecting a future you want for yourself, your loved ones, and your hard earned assets. If you have been wondering when the best time to start estate planning is, the answer is “now.” Along the estate planning path, you will be faced with many important decisions. For instance, there are a number of estate planning tools that will help with the distribution of your assets to your intended beneficiaries after you pass away. While most people think of a will for accomplishing this, it is not the only option. A living will can also see to the proper distribution of your assets after you die. So, which one should you choose? What is the difference between a will and a living trust?

What is the Difference Between a Will and a Living Trust?

A will is a legally binding document that takes effect upon the passing of the testator, the creator of the will. In a will, you can dictate to whom you want certain assets to pass to. A will goes through the court supervised probate process and will be verified by the probate court. At the end of the probate process, the assets remaining in the testator’s estate will be distributed according to the terms of the will to the designated beneficiaries.

A trust is a legal tool created by the trustor or grantor. Once established, assets to be distributed by the trust must be transferred into the trust, funding the trust itself. To hold an asset in the trust, ownership of the asset must be transferred to the trust itself. So, technically the asset is owned by the trust, and not the grantor of the trust. With a living will, the trustor, who often also acts as the trustee for his or her lifetime, can retain control over the trust and, in turn, over the assets held in the trust. A living will can be freely amended by the trustor.

Unlike a will, a trust becomes effective immediately upon its creation. There is no wait until the trustor dies for it to come into effect. One of the biggest differences between a will and a living trust is the fact that a will goes through probate whereas a trust will pass outside of probate. This is because the assets held in the trust are technically the property of the trust and not of the trustor. This difference creates a major benefit in choosing a living trust over a will. Avoiding probate is beneficial for a number of reasons. The probate process can be quite time consuming. Beneficiaries will likely have to wait an extended period of time before receiving any inheritance. Additionally, probate can be expensive, especially when you total up all of the court fees, costs, and legal fees that can be incurred along the way. Lastly, probate is a matter of public record and so the estates as set forth in a will are afforded little to no privacy.

Estate Planning Attorneys

Talk to the knowledgeable estate planning team at Hyden, Miron & Foster about your estate planning options. We are here to develop a unique and comprehensive estate plan that best serves you, your loved ones, and your goals. Contact us today.


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