A common and basic estate planning dilemma involves choosing whether to create a living trust or to write a will. These two instruments are similar because they create mechanisms for the distribution of property after death. But they have very different structures and uses, which are important to note when creating an estate plan.
When determining whether to use a trust or a will (or some combination thereof) to distribute assets, you should consider the advantages and disadvantages of each instrument.
WILLS
Advantages:
1. Less expensive on the front end. It typically costs more to set up a trust than to draft and execute a will.
2. Governing law. The law of wills has more protections in place for probated estates than laws governing trusts.
3. Time limit for creditors. The probate court sets a deadline for creditors to make claims on an estate.
4. Maintain title on property. There is no need to transfer title of property to another entity to make a will valid.
Disadvantages:
1. Public record. Upon death, your will is filed in probate court and is available for anyone to view.
2. Expensive probate. Probate can be both slow and costly.
3. Incapacity of testator. A will is only effective upon death, and cannot create mechanisms if the testator were to become mentally or physically incapacitated.
4. Multiple probate proceedings for out-of-state property. If you die with property outside the state where the will is effective, that property must be probated separately in that state.
5. Loss of control over fiduciaries/guardians. While you can nominate your own fiduciaries and guardians in a will, the probate court ultimately has the final say and has the discretion to ignore the testator's wishes if he/she believes it's in the best interest of the estate or children.
LIVING TRUSTS
Advantages:
1. Avoid probate. Living trusts dispose of property like wills, but without the money and time costs associated with probate.
2. Incapacity of trustee. A living trust can immediately transfer property to someone else in the event of mental or physical incapacity without a court order.
3. Privacy. Unlike a will, a trust instrument is not a public document.
4. Out-of-state property. There is no need to probate out-of-state property held in trust.
5. Control over fiduciaries. Since a court is not involved in trust administration, you have complete control over who you name as trustee.
Disadvantages:
1. Initial cost. Unlike creating and executing a will, drafting documents and setting up the trust can be expensive.
2. Loss of ownership of trust property. You must relinquish formal title to the property placed in trust to a new entity.
3. No cut-off date for creditors. Creditors do not have a time limit for bringing claims against your trust.
4. No guardians for minors. You cannot designate guardians for minors in a trust.
For individuals and couples with large or complex estates, a good option is to utilize some combination of the two. A will is highly recommended for anyone with minor children wishing to make a recommendation of guardianship as well as for anyone wanting to distribute property upon their death without losing control of it in their lifetimes. Under the right circumstances, supplementing that will with a living trust can provide you the security of knowing that your wishes will be carried out without interference from a court. Regardless of the approach you choose, be sure you contact an attorney before proceeding because much can go wrong if your trust or will is drafted or executed improperly.
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Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com