The Last Will and Testament Versus the Living Trust – Explained! 

In the realm of estate planning, there are two primary vehicles to ensure your assets get to your heirs: the Last Will and Testament and the Revocable Living Trust.  While both serve a similar purpose of distributing assets upon your passing, they operate in distinct ways and offer different advantages and disadvantages. Understanding these differences is crucial for individuals seeking to effectively manage their estates and ensure their wishes are carried out.

Last Will and Testament:

A Last Will and Testament, often called a Will, outlines how the testator (the person creating the Will) will distribute assets. This can also appoint guardians for minor children upon their death. Here are some key characteristics of a Will:

1. Probate Process: One significant aspect of a Will is that it typically goes through probate, where the court supervises authenticating the Will, paying debts, and distributing assets. Probate can be time-consuming and costly, usually involving legal fees and court expenses.
2. Ease of Creation: Wills are the simplest way to ensure your stuff goes where it is supposed to go. Unlike a Living Trust, there is no need to update assets into the name of the Living Trust. Thus making it much easier on the Testator.
3. Simplification of Fulfilling Wishes: A Will can reduce the burden on those executing your wishes by minimizing Court interference and eliminating the need for an executor’s bond. It also reduces the risk that your heirs will argue over who should manage the process and how.  
4. Public Record: During probate, a Will becomes part of the public record, allowing third parties to access details about the estate and beneficiaries. This lack of privacy can be a concern for some individuals.

Living Trust:

Living Trust, also known as a Revocable Trust, Revocable Living Trust, or Inter Vivos Trust (which is just Latin for a r“while alive” trust).  A legal entity created during one’s lifetime to hold and manage assets. Unlike a Will, which takes effect only after death, a Living Trust can be used while the grantor is alive. Here’s how a Living Trust differs:

1. Avoidance of Probate: A key advantage of a Living Trust is bypassing probate for assets within it. As the trust “owns” assets, they’re not part of the grantor’s estate subject to probate. This can lead to significant time and cost savings for beneficiaries.
2. Privacy: Unlike Wills, Living Trusts are usually private documents. They aren’t part of the public record, ensuring confidential asset transfer to beneficiaries.
3. Incapacity Planning: Living Trusts not only distribute assets after death but also manage them in case of the grantor’s incapacity. By appointing a successor trustee, the grantor ensures asset management without court intervention.
4. Planning for Children: A living trust allows for delaying distribution to minor children and appointing a trusted trustee to act as a financial parent as they grow.
5. Out of State Properties: Remember, your estate will go through probate anywhere that you own property. If you own property in Washington and a vacation home in Arizona, probate may be necessary in both states. This is an unnecessary headache and expense!
6. Estate Tax Planning: A Living Trust often captures the estate tax exemption amount for each spouse, providing advantages for spousal estate tax planning.

Conclusion:

Both a Will and a Living Trust distribute assets but have unique advantages. Wills are more straightforward and suitable for simpler estates, while Living Trusts provide greater flexibility, privacy, and the ability to avoid probate. Certain advantages of a Living Trust can be added to a Will, but probate is still required.

Ultimately, the decision between the two methods depends on individual circumstances.  The choice between methods depends on estate size, assets, privacy, and incapacity planning needs, varying by individual circumstances.

Consulting with an experienced estate planning attorney like those at The Harbor Law Group can help individuals determine the most appropriate option for their needs and goals.  Please contact us today to learn more about your options – because not having a plan is the worst plan!  You can set up your 15-minute complimentary phone call at [email protected] or 253-358-2215.