A Last Will and Testament is traditionally used to distribute estate assets in a simple estate plan. If your estate plan still uses a Will for its foundation, it might be time to consider another option – a trust. A trust can also be used to distribute estate assets after your death; however, a trust can also be used to help achieve a multitude of additional estate planning goals in the meantime. Last Will vs. living trust – what is the difference and which one is right for your estate plan?
What a Last Will and Testament Can Do for You
A Last Will and Testament is a legal document that communicates your final wishes pertaining to possessions and dependents. Your Will allows you to make both specific and general gifts. For example, you might make specific gifts of your vacation home along with $50,000 in cash to your son. You could also gift a percentage of your estate to a beneficiary. For example, you could gift half of your entire estate to your daughter. Your Will is also where you will appoint someone to be the Executor of your estate. Your Executor plays a vital role in the probate of your estate after your death. Finally, a Will provides you with the only official opportunity you will have to nominate a Guardian for your minor children in the event one is ever needed after you are gone. One of the most important benefits to executing a Will is that it ensures your estate will not be administered using the state’s intestate succession laws which distribute a decedent’s estate to legal heirs according to priority.
A trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a Settlor (also referred to as a Maker or Grantor), who transfers property to a Trustee. The Trustee holds that property for the trust’s beneficiaries. All trusts are first divided into one of two categories – testamentary or inter vivos – the latter of which is more commonly referred to as a living trust. A testamentary trust is a trust that arises upon the death of the Settlor and which is typically activated by a provision in the Settlor’s Will. A living trust is a trust that takes effect as soon as all the legalities of creation are in place.
A trust agreement is also a legal document that serves to establish a trust. Assets held in the trust are distributed by the Trustee according to the terms of the trust. When used to distribute estate assets after the death of a Settlor, the trust terms will tell the Trustee when to distribute assets and which assets to distribute to which beneficiaries.
Trust vs. Will — Why You Might Choose a Trust
Because of the highly personal nature of estate planning, it is in your best interest to discuss the unique facts and circumstances of your estate with an experienced estate planning attorney before deciding to switch from a Will to a trust as your primary distribution tool within your estate plan. It certainly does not hurt, however, to learn what some of the advantages are to relying on a trust agreement to direct the distribution of your assets. For example, a trust can help with:
- Avoiding probate – assets held in a trust are not required to go through the probate process. Therefore, those assets will bypass probate and can pass directly to beneficiaries much faster.
- Privacy – because a trust agreement is not part of the probate of your estate, the terms of your trust remain private. Therefore, gifts made using a trust agreement can remain private as well.
- Staggering an inheritance – if you are concerned about leaving a lump sum to a young and/or inexperienced beneficiary, a trust agreement allows you to stagger the inheritance you leave that beneficiary.
- Incapacity planning – the terms of a Will do not become relevant until the death of the Testator; however, the terms of a trust can apply in the event of incapacity as well as death.
Contact a Westport Estate Planning Attorney
For more information, download our FREE estate planning worksheet. If you have additional questions or concerns about the Last Will vs. living trust dilemma, contact the experienced Westport estate planning attorneys at Nirenstein, Horowitz & Associates, P.C. by calling (860) 548-1000 to schedule an appointment.