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Living Trust vs. Will—Which One You Need

Dena Standley | April 12, 2024

Dena Standley
Legal Expert, Paralegal
Dena Standley, BA

Dena Standley is a seasoned paralegal with more than 20 years of experience in legal research and writing, having received a certification as a Legal Assistant/Paralegal from Southern Technical College.

Edited by Hannah Locklear

Hannah Locklear
Editor at SoloSuit
Hannah Locklear, BA

Hannah Locklear is SoloSuit’s Marketing and Impact Manager. With an educational background in Linguistics, Spanish, and International Development from Brigham Young University, Hannah has also worked as a legal support specialist for several years.

Deciding between a living trust vs a will can make a huge difference. Choose wisely.

Summary: Living trusts and wills are both estate planning documents that take care of the distribution of someone’s assets, money, and possessions after death. Choosing one over the other also depends on your age, wealth, and the various relationships you have. One of the biggest differences between these documents is that a living trust does not involve the court, while a will undergoes a lengthy, structured court process known as probate. Below is SoloSuit’s guide on the difference between a living trust and a will and which might be better for you.

Choosing between a professional living trust and a will depends on your particular circumstances and the sensitivity of your family situation. For instance, do you want your estate to go through probate, for guardians to be named for your children, require property transfer while still alive, or have witnesses present?

These are some of the concerns you must consider, and afterward, choose the estate plan that addresses your most essential needs. To assist you in making an informed choice, this article will help you understand the difference between a living trust and a will and their unique functions.

What is a living trust?

A living trust is a legal estate planning document that puts most of someone’s assets in a trust during their lifetime. After their death, a trustee manages the trust and distributes the assets to the beneficiaries per the specifications outlined in the trust.

Living trusts do not go through the court process, allowing your beneficiaries to gain access to your property immediately. This benefit saves your loved one's time and money but comes at a cost for you while you are alive. Other benefits include:

  • A living trust does not become a public record, and your family matters remain private.
  • A living trust allows you more flexibility in distributing your assets. For instance, you can require the distribution done immediately after your death or at a later date indicated in the document.
  • A living trust is more challenging to contest than a will.

A major drawback of a living trust is that you cannot name a guardian for your children or executor of the estate. A will may be preferred in such circumstances.

What is a will?

A will is a legal estate planning document that details how someone’s assets will be distributed at the time of their demise. The document is revocable and can be amended at any time while they are still alive. One can also use a will to name an executor or guardian for their children, explain how to pay their taxes, and forgive debts. Other benefits of a will are:

  • A will is relatively easy to create and maintain.
  • With a will, there is no need to change ownership or perform complex transfers in one’s lifetime.
  • A will does not have an ongoing fee. You can pay someone to create it and forget about it afterward.

After death, the execution of a person’s wishes (in the will) undergoes a highly structured and court-supervised process known as probate. This process may take longer and cost more for their loved ones—compared to a living trust.

You can decide whether to make a trust or will online without needing an attorney.

What are the main differences between a living trust and a will?

As we have seen so far, there are distinct differences between a living trust and a will. The following table gives a comprehensive summary of these differences.

Living Trust vs Will

Living Trust Will
Does not require witnesses Must have at least two witnesses
Relatively complex to make and maintain Often made once and only adjusted when there's a chance in property
Instruction on payment of debt and taxes is left up to the Trustee Includes how the executor should pay debt and taxes
An executor isn't required or named, but a Trustee is required An executor must be named for the document to be valid
No need to name a property manager or guardian for the children A property manager or guardian for children is named and enforced by law
The document is protected from court challenges The document can be challenged in court
Requires transfer of assets for it to be complete Does not require the transfer of assets
Does not go through probate Must go through probate
Everything is kept private The document becomes public knowledge

Now, let's look at an illustration for more clarity.

Example: Jim had always postponed making an estate plan because he feared thinking about the reality of death. On his sixtieth birthday, he knew he couldn't avoid it any further. He called a lawyer his son had recommended and shared his concerns. Jim wanted a document that would avoid the court process. He also wanted to transfer everything to his two sons while he was still alive but still maintain ownership. The lawyer recommended a living trust as it met his requirements. In addition, his children were both responsible adults and had a good relationship with their father, reducing the chances of having a court battle.

Which estate planning document is best for you?

Generally, a living trust and a will accomplish the same objective, leaving instructions on how your estate should be distributed. However, a living trust allows you to enjoy other benefits and comes at a higher price, while a will does not. Choosing one over the other also depends on your age, wealth, and the various relationships you have. Hence, you should select an estate plan document that meets your needs and is in the best interest of your loved ones.

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