Which One: Will or Trust?
Should I use a will or a living trust?
Building an estate plan is like building a modern shop. A shop can be built using tools of a bygone era, or built efficiently with modern tools. Your estate plan is something you want to build. Wills and living trusts are simply tools, they are not the objective.
By CURT FERGUSON
Every so often it is good to go back to the basics.
Building an estate plan is like having a new shop built on your farm. You dream about it. You talk to an architect. you study the possibilities. You consider the features that would serve your purposes and establish your budget. Will it be wood frame or steel? Concrete floor? Insulated? will it be climate controlled, and, if so, should you use floor heating? How about a wash bay, to clean equipment year round Should you run air lines throughout for air tools? Do you need a pit or a lift for working underneath equipment? Will you include an office? How about4 a kitchen, a loft for storage, or maybe sleeping quarters? We could go on and on.
You do not start the shop-building process by asking, “Shall I hire a builder who uses a shovel, hammer, handsaw, end wrenches, a plumb-bob, and wooden scaffolding, or should I hire a contractor who has a backhoe, pneumatic nailers, power miter saw, cordless drivers, laser levels, and a hi-lift?” No. You start by thinking about what you wnat to build. You don’t even think about what tools are going to be used. You decide what shop should do for you. AFter you decide that, you hire a contractor who has modern tools to accomplish the job efficiently.
Nearly any shop could be built using entirely hand-powered tools. Great cathedrals were built that way! But those cathedrals took decades. Trying to build a modern shop with just hand tools would be terribly inefficient. In fact, it will cost you a lot more than if you employ a builder with modern tools.
How silly it would be to start your shop-building project with, “I am only going to build what can be easily built with hand tools; none of those electric, air, and diesel gizmos!” If you started out by limiting the tools that would be used, you would have to scale back the project. To do all of what you had in mind would cost far too much if no power tools are used. It probably won’t be practical to have the steel frame, or the climate control. Better not try to run air lines everywhere, or line the interior. Give up on the wash bay and the finished office.
So, if you insist on limiting your shop to what can be accomplished with the most inefficient tools available, you will end up with a glorified pole barn with a cement floor. But, hey, it sheds the rain, and you can tell your kids, “We got the new shop built!”
When it comes to estate planning, a common question people ask is, “Should I use a will or living trust?” This is asking, “Which tools should I employ?” The answer is simple: forget about the tools! What do you want to build? Presumably your attorney uses the most efficient, modern tools available so you can get the most effective estate plan for your money.
What do you want the heirs’ inheritance to look like when you finish building it? Study the possibilities. Meet with an architect. Design, refine, and then plan. Will what you construct be equal or fair? Spelled out clearly and concretely? Should each heir’s inheritance be insulated from divorces and lawsuits? Will the farmer in the next generation be protected, and, if so, how will the other children benefit? If the farmer has the right to rent from the others, how do we keep that squeaky clean? Should one child get all the equipment, or pay the others a share of its value? If you want these protections in the plan, what mechanism is there for maintenance over time? When your child gets old, will the nursing home take what you gave them? Do you want the family to gather for Thanksgiving dinners long after you are gone? Then plan for harmony.
These are the questions to focus on: how do you want your land, operation, equipment and legacy to look after your heirs receive it? That is the “shop” you are designing. And, like the shop design, we can go on. More personalized and better suited for your heirs and your operation.
Don’t feel badly for asking, “Should I use a will or a trust?” You are not alone. It seems that even most attorneys consider that an important question. It most certainly is not.
What do you want to build? The tools are obvious.
Originally published in the Prairie Farmer® February/March 2018