Will vs. Trust: What's the Difference?

Wills and trusts are both estate planning tools that can help ensure your assets are protected and bequeathed to your heirs or beneficiaries, besides your spouse, which is generally not an issue. This is because the unlimited marital deduction provision within the United States Estate and Gift Tax Law allows the passing of wealth to a surviving spouse without incurring gift or estate tax liabilities.

However, the transfer process becomes much more involved when wealth is passed to a subsequent generation. It is possible to have both a will and trust.

A will is a written document expressing a deceased person's wishes, from naming guardians of minor children to bequeathing objects and cash assets to friends, relatives, or charities. A will becomes active only after one's death. A trust is active the day you create it, and a grantor may list the distribution of assets before their death in it, unlike a will. There are irrevocable trusts, often created for tax purposes, which cannot be altered after their creation, and living trusts, which can be changed by the grantor.

All wills must go through a legal process called probate, where an authorized court administrator examines them. This process can be lengthy and potentially contentious if family members contest the will. Trusts are not required to go through probate when the grantor dies, and they cannot be contested.

For this article, we will examine how these estate planning tools can be used to provide for your heirs, including:

• Whether you need a will, a trust, or both
• The different types of trusts
• The advantages and disadvantages of wills and trusts

Wills

The most common type of will is called a testamentary will. It is a legally enforceable document stating how you want your affairs handled and assets distributed after you die. It can also include a directive of how you want your funeral or memorial held. A will is an important component of estate planning, and a number of online will makers offer tools for generating legal forms and documents. Experts suggest seeking legal counsel from an attorney that can take into account your individual estate-planning needs.

This is what you can find in a will: a list of assets and debts, including any family heirlooms, the contents of safe deposit boxes, property, and vehicles. You can leave your possessions to heirs, friends, or charities.

A will can be effective in an estate transfer and other legal proceedings after death, but there are drawbacks that you should be aware of. Your estate will become part of the public record, for example, and anything left by a will must go through probate court. Also, probate attorneys can be expensive and cannot be avoided except in California and other specific states. Retirement accounts and life insurance policies pass straight to named beneficiaries do not go through the probate process.

Guardianship of Minor Children

If you have minor-aged children at home, it's important to have a will that appoints guardianship of your children. If a guardian is not appointed at the time of death, your surviving family will have to seek help in a probate court to have a guardian appointed for your children. The person appointed may not be one whom you would have wanted to be entrusted with your kids.  

It would be best to consider how you will pass a portion of your estate to a minor child through a will. A will places your decisions in the hands of the judge presiding over your estate transfer. Your testamentary will carry out your wishes from beyond the grave. A will also allow you to give insight and direction over the handling of assets your beneficiaries will receive. Within reason, you can address how you would like them to use what you have left them. 

Disinheritance

While children (natural or adopted) have a statutory right to inherit, a will allows you to disinherit a child if you choose to do so (check your state laws for the specific details about this). A person can disinherit a spouse as well, under certain circumstances.

However, you will need to be aware of the laws governing your state—whether it is a common-law state, a community property state, or an equitable distribution state; a person may only disinherit a spouse in a community property state. Each has a different set of stipulations on what and how much can be disinherited. Note, too, that a person can only disinherit a spouse or child through a will.

What if I Die Without a Will?

If you die without a will, called intestate, the state gets involved, and it will oversee the distribution of your assets. If you have minor children and die intestate, the court will appoint a guardian. Besides, the courts follow a set formula of how to divide assets, and it could result in actions that could negatively impact a surviving spouse or child.

A will protects survivors against estate tax liability as well. As of 2021, U.S. estate tax returns are required to be filed if your estate is valued at $11.7 million ($11,580,000 for 2020).3 If your estate is worth less than this figure, there is no tax return required, and you will not be charged an estate tax.

Trusts

A trust is another method of estate transfer—a fiduciary relationship in which you give another party authority to handle your assets for the benefit of a third party, your beneficiaries.

A trust can be created for a variety of functions, and there are many types of trusts. Overall, however, there are two categories: living and testamentary. A will can be used to create a testamentary trust. You can also create a trust for the primary purpose of avoiding probate court, called a revocable living trust.

Living Trust

Let's focus on a revocable living trust for estate transfer. Like a will, a trust will require you to transfer property after death to loved ones. It is called a living trust because it is created while the property owner, or trustor, is alive. It is revocable, as it may be changed during the life of the trustor. The trustor maintains ownership of the property held by the trust while the trustor is alive.

The trust becomes operational at the trustor's death. Unlike a will, a living trust passes property outside of probate court. There are no court or attorney fees after the trust is established. Your property can be passed immediately and directly to your named beneficiaries. 

Testamentary Trust

Trusts tend to be more expensive than wills to create and maintain. A trustee will be named in the document to control the assets' distribution following the trustor's wishes, following the trust document and its mandates. This is also an effective way to control the passing of your estate beyond the grave. 

A declaration of trust will also provide the basic terms of the trust. Your estate stays private and passes directly to your heirs, you do not pay a probate attorney or court costs, and your loved ones may be able to avoid being tied up in probate court for what could be a year or more. From this planner's perspective, trust can be a fantastic choice for estate transfer.

Special Considerations

Trusts Could Keep Your Heirs Out of Probate Court

One-stop you should try to avoid on the estate-transfer train is probate court. This is where your heirs could spend months sorting out your estate if your transfer plans are not efficiently laid out. You could easily lose an additional 2-4% of your estate due to attorney fees and court costs. 4

Probate court is the judicial system section responsible for settling wills, trusts, conservatorships, and guardianships. After death, this court might examine your testamentary will, which is a legal document used to transfer your estate, appoint guardians for minor children, select will executors, and sometimes set up trusts for your survivors.

Your executor would still be responsible for sorting out the estate, which could take 6 to 18 months, depending on the intricacies. Imagine your eldest child spending the next year and a half traveling back and forth to court hearings when they should be mourning your passing. It doesn't sound fun, but it's a possibility if you haven't left a clear and well-drawn will and/or trust documents.

Also, see my Wills and Trusts FAQ page.