Will or Living Trust: which is better?

Will or Living Trust: which is better? A Will usually requires probate, but can gather assets upon death. A Trust does not require probate, but you should convey assets into Trust during life.

We will consider some basic ways a Will and Trust differ:

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Will:

When I die, ___ goes to my ___.

So, assets I owned in my sole, individual name are subject to being probated, per terms of my Will.

I name my spouse as Executor, and maybe my oldest child as backup, to administer my estate.

Then, my Executor hires attorney for Probate (court-supervised administration; likely takes several months – sometimes 4 months just for creditor waiting period).

  • Court accepts Will for probate.
  • Court formally appoints Executor.
  • Executor files inventory.
  • Then, the Executor gives notice by publication and directly to heirs and creditors.
  • Waiting period to give opportunity for creditors to file claims against estate.
  • Court supervises more or less, depending upon type of probate.
  • Executor accounts for and distributes assets with Court approval.
  • Finally, the Estate is closed.

Trust:

  • When I die, my spouse has continuing control and use of all assets.
  • After spouse dies, then assets applied for care of kid(s) so long as minor(s).
  • Assets are available for post-secondary education for kids(s).
  • And, remaining assets go to kid(s) at age 22, 25 and 30.

Now, when I sign a living trust, I’ll title major assets into my Trust (a Trust does not gather assets into it automatically but you may have a backup “Pourover” Will to move forgotten assets into your Trust).

Trust administration usually means:

  • Minimal notice goes to beneficiaries and accounting (per state statute).
  • Trustee manages and distributes assets of trust.
  • Court need not supervise.
  • Proceedings are not filed or public.
  • Trust provisions control how Trustee may act.
  • Trustee owes duty to beneficiaries.

So, please note that this is, of course, general advice. You should get attorney advice for your specific situation.

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