Living Trust vs Will:  Understand the Key Differences

Death never takes a conscious person by surprise; one is always ready to go. Although a last will and testament and a living trust are similar, they differ in several crucial ways. It is important to consider the pros and cons of a living trust vs will when preparing to transfer your property and care for your loved ones upon your death.  

What Is a Will?

A last will and testament are often both simply referred to as a “will”. However, even wills may be different. For instance, there is a “living will” that is an entirely different type of directive. A will is a legal document created by a legally competent person that states what they want to happen to their property when they die. Wills essentially act as an instrument to transfer assets as a person wishes upon their death.

To create a will, a person must have the mental capacity to understand what the will is, that the document one is signing is a will, and that it will transfer their property upon death. If people become mentally incapacitated, they will no longer be able to create or revise their will.

Besides distributing the person’s property, a will may also name an executor who will handle probate and guardians for any minor children. Wills must go through a probate court in the proper jurisdiction in order to have any legal effect. 

How to make a will?

Most people have no idea how to create a will or what would even be included in one. While it is always wise to seek the guidance of a competent estate planning or probate law attorney to guide you, it can be helpful to have a template to print out and discuss with your attorney. You may also choose to create your will without the help of an attorney. Either way, you need a good template to create a legal will. 

Create, download, and print out Lawrina’s Last Will and Testament Template that will become your detailed legal will that accomplishes your wishes upon your death. At Lawrina.com, you can also access interactive tools to help you locate attorneys in your area who can help you with your unique needs. To create a will, follow these steps:

  1. Create and download our Last Will and Testament Template and thoroughly review it.
  2. Go to Lawrina Match and locate an estate planning or probate attorney near you.
  3. Make an appointment for a consultation with the attorney of your choice.
  4. Take our Last Will and Testament Template with you to your appointment.
  5. Discuss any questions you have about the template and your situation.
  6. Identify whether you need an attorney’s assistance.
  7. Make a will or hire an attorney to do it for you.

What Is a Living Trust?

Living trusts are very different from wills. They are sometimes referred to as a revocable living trust. While you can distribute your property to whomever you want in a living trust, a living trust does not go through the probate process to become effective. Many people want to have a living trust for the very purpose of avoiding probate. However, this document does not allow a person to name an executor, nor does it allow for the designation of guardians for minor children. Thus, most people who create a living trust also create a will. 

Since living trusts are complicated, they are usually more expensive to create. They may also require ongoing legal expenses since they must be updated as assets are acquired and sold. 

Difference Between a Living Trust and a Will

There are numerous differences between what a living trust and a will allow a person to accomplish. In some ways, a will allows limited control when compared to a living trust. When contemplating your needs for trust vs will, the following table helps understand the difference between living trust and will.

Living trusts allow you to avoid probate of the property transferred into the trust, as opposed to last wills and testaments which require probate to become effective and transfer assets. 

The transfer of property can be made through a living trust or a will. However, a person cannot leave property to a minor child through a last will. Nevertheless, the property can be left to minors through a living trust because the trustee is appointed to manage the property until the minor child reaches whatever age you decide above the age of eighteen. 

You can designate an executor for your estate in a will. However, in a living trust, you can not name an executor. Instead, you must designate a trustee and successor trustee of the living trust. 

Both living trusts and will must be executed before a notary public. Wills are required to be executed in the presence of witnesses. 

If you have minor children, you will likely want to consider appointing guardians for them should you die while they are still minors. Guardians are usually designated in a last will and testament and not in trust documents. 

A major benefit of a living will is that it can be kept private after your death. A will must be probated in court to pass assets to your beneficiaries and therefore is not private. 

Wills are relatively easy to create. Living trusts, however, are more complicated and are usually more expensive to create. 

A revocable living trust requires assets to fund it at the time of creation, whereas a will only transfers property at the time of your death. 

A living trust allows a person to avoid conservatorship by designating a trusted person to take control over the trust property should the person become incapacitated. A will does not allow for the avoidance of conservatorship. Without a living will, a person would need to create other legal documents, such as a durable power of attorney. 

What Living Trusts and Wills Cannot Do

While a person has fairly broad discretion when creating a last will and testaments and revocable living trusts, there are some things that these legal documents can not do, including:

  • Save money on estate taxes;
  • Allow pets to inherit property;
  • Ensure your burial wishes are followed; and
  • Transfer some retirement accounts and insurance proceeds.

Unfortunately, estate taxes can not be avoided or reduced no matter how good your living trust or will may be. According to Current Law 2022, most states no longer have estate taxes. However, federal estate tax laws control whether taxes are owed on estates valued above a certain threshold. 

You cannot leave your pets the property upon your death, no matter how much you love them. You should consult with an experienced estate planning lawyer for advice on how you can ensure your pets are cared for if you are no longer alive.

While many people do state their wishes for their burial in a Last Will and Testament, it should never be done in a living trust. It is much better to state your detailed final wishes in a separate document for your executor to follow. 

Some retirement accounts and the proceeds of insurance policies are not transferred by a will or living trust. These types of accounts usually require you to make a beneficiary designation that will control how the assets are distributed upon your death. 

Do I Need a Will or a Living Trust?

The vast majority of people need to have a last will and testament. Some people should consider having a living trust. When considering the question of “do I need a will or living trust?”The answer is:  “It depends.” 

It is always best to sit down with an experienced estate planning or probate attorney to discuss your financial affairs, circumstances, concerns, and desires. An experienced attorney can give you personalized advice for your individual circumstances. They can help you consider the benefits of a living trust vs last will and how the differences impact your situation. 

What If I Don’t Have a Will or Living Trust?

If you don’t have a living trust or a last will and testament, your property will be inherited according to the probate laws of the state you live in when you die. It is critical that you fully understand how the probate laws of your state work and how they would impact your wishes for your property. Making an appointment with experienced probate law or estate planning attorney in your state may be one of the wisest decisions you ever make.

Conclusion

You can use a last will and testament and a living trust to transfer your assets. Both legal documents have their pros and cons. It is important to understand how the probate laws of your state would distribute your property upon your death if you do not create a will or a living trust. It is also critical that you understand the differences between these two legal documents and what each can accomplish. To ensure your wishes are followed, it is wise to seek the advice and guidance of an experienced estate planning or probate law attorney near you.

Frequently Asked Questions

If I do not have minor children, do I need to create a will?

In most cases, people should consider creating a will even if they do not have minor children. A will has the advantage of allowing you to name guardians for minor children. An executor can be appointed by you to handle your estate and to probate any assets not transferred into a living trust.

Do I need a lawyer to create a last will and testament?

Not necessarily. However, it is critical that you understand how to properly create a last will and testament as well as how the probate laws of your state will impact your property if you don’t have a will. You can use our Last Will and Testament Template to create your own will or to use it as a checklist to discuss with an estate planning attorney in your location. 

Should I have a will and also a living trust?

You may want to have both a will and a living trust. It is best to have a consultation with an experienced estate planning attorney to discuss your unique circumstances and to understand how these legal documents can help ensure your final wishes are followed.

Article by Yevheniia Savchenko

Yevheniia Savchenko is a Legal Writer at Lawrina. Yevheniia browses through the most interesting and relevant news in the legal and legaltech world and collects them on Lawrina’s blog. Also, Yevheniia composes various how-to guides on legaltech, plus writes product articles and release notes for Loio, AI-powered contract review and drafting software.

Thank You! Welcome on board
We use cookies to improve our website's work and deliver better services.
Our use of cookies
Upgrade the manual re-reading of agreements with Loio's AI-driven Highlights. Be in full control over every editing decision, but have the power of machine learning analysis by your hand. Turn on the Highlights tool whenever you need an extra check of your document's most essential details.
Analytics
These cookies collect information that is used to help Us understand how Our Site are being used or how effective Our marketing campaigns are, or to help Us customize Our Site for You. We use Google Analytics to recognize You and link the devices You use when You visit Our Site or Service on Your browser or mobile device, login to Your User Account on Our Site, or otherwise engage with Us.
Communication services
These cookies collect information that is used to help Us to facilitate the interaction with You on Our Site. We also use those cookies to improve customer service by maintaining contact with visitors of Our Site through Intercom chat.
Ad Services
We and Our third-party partners may also use cookies and tracking technologies for advertising purposes. These third-party services collect information about Your use of Our Site over time so that they may play or display ads on devices You may use, and on other websites, apps, or services.