Every person, approaching the end of their life, starts thinking about their legacy, of being able to provide for their loved ones that survive them.
Every year an estimated 1 in 3 Americans die without leaving behind a legal documentation of some sort that answers who will benefit from their wealth, property, savings, and investments that they leave behind.
Having to come to terms with the news of death is already distressing, but having to deal with the legal side of who gets what is a whole new headache that you can save your loved ones if you plan ahead.
The question remains, which is better: a will or a trust?
The decision to opt for one instead of the other will depend on your circumstances. But, with that said, this article is going to help you identify the right choice for you and your loved ones.
A will is a document that distributes your assets after your death. It can help make sure that the people and causes you care about receive what you want to allocate them.
With a will, your property gets distributed the way you want it to be. In case of minors, you also get to appoint someone in your will who will carry out your wishes in your stead until the child, or children, are of age.
You have to specifically name the person you want to allocate your wealth and properties to. If you are having trouble drawing up a Will by yourself, get in touch with an experienced lawyer who can help you with all the legal requirements to draw up a valid will that hold in a court of law.
A will often include instructions for the distribution of personal effects, such as jewelry or clothing; lists beneficiaries for retirement plans, insurance policies, and other types of accounts; designates guardians for minor children; names an executor who will be responsible for carrying out its provisions; and names alternate executors who can step in if the primary executor becomes unavailable or declines the job.
Why do you need a will?
A will puts you in control of where your assets will go, who will receive them, and how they’ll be distributed.
You may need a will for any of the following reasons:
- You want to make sure your family is provided for in the event of your death.
- You want to leave money or other items to people other than your spouse or children.
- You own real estate that you would like to pass on to someone other than your spouse or children.
- You have minor children who would be left without care if their parents died without a will in place. A will can include the appointment of guardians.
- You wish to leave funerary instructions.
- In case you have a large family and many candidates for beneficiaries.
A trust is a legal arrangement that provides for the transfer of assets to another party (such as an heir). Trusts are typically set up to avoid the probate court after death or incapacitation of the bestower of the estate.
A trustee manages the funds in the trust during your lifetime and distributes them according to the terms of the trust agreement after you pass away.
Trusts are often used as estate-planning tools by people who have minor children or disabled family members and want to make sure that their heirs don’t squander their inheritance.
They can also be useful for protecting assets from creditors and ensuring that your loved ones have access to your money or property even when you are not around or able to manage affairs.
Why do you need a trust?
Trusts are used for many reasons, including:
- Avoiding probate
- Trusts can provide for beneficiaries who are minors or have special needs.
- A trust can help manage property for a disabled individual who isn’t competent to manage it themselves. It can also be used as part of a guardianship plan in which someone else manages the financial affairs of a person who is unable to handle their own affairs.
- Certain trusts help you avoid taxes, such as the marital deduction (which allows surviving spouses to avoid paying estate taxes on inherited properties) and charitable giving deductions (which allow donors to avoid paying income taxes on certain donations).
Will vs. Trust
The primary difference between a will and a trust is that a will only goes into effect after your death, while a trust goes into effect immediately upon creation. This means that if you create a trust today, any assets held within it would be distributed according to its terms, whether or not you were alive at the time of its distribution.
However, if you create a will today, it won’t take effect until after your death.
Another difference is circumventing the probate. Probate is a legal process that requires the appointment of an executor, the payment of fees, and the distribution of assets according to the terms of the will.
A trust avoids side steps all of these. A trust is often used to avoid probate because the assets are transferred outside of the estate before death.
Ultimately, the choice between a will and a trust comes down to your circumstances and preferences. There are advantages to both wills and trusts and the choice between them must be carefully considered in each case, based on the preferences of the settlor and specific circumstances. By taking the time to go through all these details, you can get a much better sense of which type of estate planning tool fits your needs best. Creating a will or a trust is a relatively simple process. However, with the best will or trust in place, your loved ones can avoid much of the costly and protracted litigation that often follows the death of a family member. With so many options available to you, getting the help of an experienced estate planning attorney should be your first step.