Wills vs. trusts: How they stack up
By Curt Ferguson
Which is better, a will or living trust? I generally go out of my way to avoid taking a position on this complex question.
But there are clear differences and, for most people, advantages to using ordinary, revocable living trusts.
Wills and living trusts are merely written instructions for what you want done with the things you own when you don’t need them any more (i.e. after you pass away!). Yet, they are very different legal instruments administered in very different ways.
A will is a written document stating your desires for the division and distribution of your estate at your death. It only speaks when you die. It is governed by property and probate law.
A living trust is an agreement—a contract—you sign while living. It takes effect while you are living. You are the trustmaker, and you agree to serve as the trustee for as long as you can; you name someone else in the agreement to step in as trustee when you become disabled or die. The trust property is to be used for your benefit while living, and for the benefit of others when you die. Trusts are enforced and administered according to contract law.
You can amend a will or a living trust any time while you are living. Both allow you to still do anything you want with your own property. You don’t give up any control of your property.
Which is more complicated?
Living trusts have the reputation of being more complicated than wills. That’s just not true. Using a will to accomplish your objectives is actually more complicated than using a living trust. Let me explain.
Whatever goals you have for your family and property (who gets what, when they get it and how they get it) can be included in either document. Because of the complex nature of the subject, you need legal counsel to help you develop and clarify your goals before preparing either one. Complexity is equal.
A critical step in estate planning is to retitle your assets to follow your plan. Attorneys call this “funding” the plan. The need to properly title assets so the plan will work applies to both wills and trusts. Complexity is still equal.
When death occurs, for the will to work it must go through the probate court process. While probate has become more streamlined over the years, any activities that must go through court are going to involve more red tape than if, as with a living trust, you can perform those activities without going to court. That extra complexity shows up in extra legal fees. You will still incur legal fees administering a trust after death, but the trust fees should be lower. Trust is less complex.
Wills without probate? Still complicated!
Sometimes a will-based plan doesn’t require probate. In that case, one might think that the will plan ends up being less complicated than a trust. Not so!
The will avoids probate only if the will does not control your estate. For example, instead of letting your assets pass according to your will, you use alternatives like these: life estate deeds; beneficiary designations to individuals on life insurance, annuities and IRAs; transfer on death designations on CDs and investment accounts; and titling assets in joint ownership with rights of survivorship.
While these alternatives can avoid probate, the property also avoids your will! If you try to do your planning this way, you end up with many mini-estate-plans (one for each asset) instead of one comprehensive plan. Every asset is directed by it’s own title instead of by a single, comprehensive planning document (the will or trust). As circumstances change in life, instead of just changing your will you have to change every one of your “mini-plans” too! This can become a nightmare. I’ve observed numerous estate settlements where an ex-wife or estranged children still got part of a deceased person’s estate because the decedent forgot to change the beneficiaries on life insurance or an annuity. Not pretty!
Some of these probate-alternatives are also irrevocable. If you add an heir as joint owner or you sign a life estate deed to them, you cannot undo that transaction. You’ve given up control and the ability to change your plan on that asset.
Not only are living trusts a less complicated and less expensive way accomplish your estate planning goals, but they also offer advantages of privacy and more clarity and control in case of your disability.
Planning is much more than documents, of course. But using the right documents helps.
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Article authored by Curt W. Ferguson and originally published in the Prairie Farmer magazine, October 2006 issue