Estate planning is a complicated process, and there are many different options. One of the most common questions people have regarding estate planning is whether they should prepare a will, a revocable living trust, or both, and the differences between the two.
In short, a will and a revocable living trust have overlapping but differing purposes, and one cannot necessarily replace the other. This page provides a detailed comparison of revocable trusts, highlights their advantages, and offers additional resources for those who wish to delve into estate planning.
How is a Revocable Living Trust Different Than a Will?
Like a will, a revocable living trust is a document that details how you would like your estate distributed after you pass. However, there are stark differences between how the two types of documents are executed, who oversees them, and the provisions that can be made in each.
Avoids Probate
A will is executed through a court process known as probate, which is paid for out of the decedent’s estate. When an estate passes through probate, the beneficiaries named in the will do not receive as much. Since a revocable living trust is not distributed through probate, the beneficiaries will receive more than they would from a will.
Enforceable While Living
A will only takes effect after you pass away, while a revocable living trust can be executed while you're still alive. If you name yourself as the trustee, you can begin distributing your estate yourself. While much of your estate will still have to be distributed after your passing, you can ensure that parts of it go to your intended beneficiaries.
Limited in Scope
The purpose of a revocable living trust is to distribute your estate. Creating a will is crucial as it outlines your desires for handling your estate and other related matters that will occur after your passing. In other words, a will covers more ground than a revocable living trust. In a will, you can establish your preferences for funeral arrangements and guardianship of your children, while a revocable living trust will not allow you to make these arrangements. Even if you choose to bequeath your estate through a trust rather than a will, you will likely still have to prepare a will.
More Complex
Revocable living trusts can be substantially more complex than wills. While a will designates beneficiaries for the testator’s assets, a trust entails transferring ownership of those assets to the trust itself. A trust can also have more provisions than a will regarding when your assets are transferred and to whom. Because trusts are so complex, it is common to enlist the help of an estate planning lawyer when creating one, which can cost thousands of dollars in legal fees.
Better For Minor Beneficiaries
Many types of property, such as residences, cannot legally be owned by a child. If you bequeath such property to a minor in your will, it will be controlled by a personal representative until the beneficiary is old enough to take over. If you name the same beneficiary in your trust, you can have the asset remain the property of the trust until the beneficiary reaches the age of majority, at which point it will be transferred to them.
Benefits of Revocable Living Trusts
Probate. If you place your property in a revocable living trust, it won't have to go through probate, and you won't have to pay probate fees.
Privacy. Wills are made public, and revocable living trusts are not. If you are concerned about privacy, you may prefer to distribute your estate through a trust rather than a will.
Flexibility. The terms of a revocable living trust can be amended more easily than those of a will. To change your will, you must draft an updated one or write an addendum. Witnesses will be required for both options.
Security. Since wills are executed under the guidance of a court, they are more open to legal challenges than trusts. While someone could challenge a revocable trust, there is not as much precedent.
Control. After you pass, your trust will remain under the control of your designated trustee. They will be able to continuously make decisions regarding your trust and its beneficiaries. A will does not allow for the same type of prolonged control over your estate.
Annuities. If you prefer to distribute your estate to your beneficiaries periodically instead of all at once, you can create an annuity through your trust.
Specificity. With a revocable living trust, you can allocate money for specific purposes, unlike a will. For example, you may set aside a certain amount of money for a beneficiary to put toward a home. You can include a clause in your trust stating that the money is not to be used for any other purpose.
Incapacitation. A will only goes into effect after your passing. However, you can set up your trust to be transferred to your successor trustee if you become incapable of managing it yourself due to physical or mental impairment.
Estate Planning Resources
Before deciding to work with a lawyer on your estate plan, you might be interested in learning about the basics of the field. The following resources will help you understand some of the elements of probate law and the different steps that go into planning your estate. With them, you can begin thinking about the various options for your own estate plan and taking the first steps toward preparing it. Doing so will help you get the most out of a consultation with an estate planning lawyer.
American Bar Association
Probate law is complicated, but an elementary understanding of it will make your estate planning process much smoother. The American Bar Association offers several resources for people who wish to learn more about probate, including FAQs about the process and a glossary of legal terms. They also provide an explanation of revocable living trusts.
While the ABA has resources for both legal professionals and members of the public, this page is written for an audience without extensive legal experience.
National Council on Aging
The National Council on Aging is a nonprofit organization dedicated to helping people through the challenges that come with aging. They offer help with budgeting plans for retirees, resources for helping retirees create annuities and other services that may be of interest to older folks.
Their website has a section dedicated to estate planning, including a checklist for important steps and an FAQ outlining the various aspects of preparing your estate. A team of legal professionals’ fact-checked their information to ensure its reliability.
Charles Schwab Asset Inventory Worksheet
Before moving forward with a will and a revocable living trust, it can be helpful to take inventory of the assets that you wish to be bequeathed. Charles Schwab offers a digital worksheet that breaks down the different types of assets that make up your estate, allowing you to list each one along with its value and beneficiary. This worksheet is free and can help streamline drafting a will and a trust. You can either print and fill out the worksheet by hand or complete it on a computer.
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