Both wills and trusts are estate planning documents that can be used to pass your wealth and property to your loved ones upon your death. However, trusts come with some distinct advantages over wills that you should consider when creating your plan.
That said, when comparing the two planning tools, you won’t necessarily be choosing between one or the other—most plans include both. Indeed, a will is a foundational part of every person’s estate plan, but you may want to combine your will with a living trust to avoid the blind spots inherent in plans that rely solely on a will.
Here are four reasons you might want to consider adding a trust to your estate plan:
1. Avoidance of Probate
One of the primary advantages a living trust has over a will is that a living trust does not have to go through probate. Probate is the court process through which assets left in your will are distributed to your heirs upon your death.
During probate, the court oversees your will’s administration, ensuring your property is distributed according to your wishes, with automatic supervision to handle any disputes.
Probate proceedings can drag out for months or even years, and your family will likely have to hire an attorney to represent them, which can result in costly legal fees that can drain your estate.
Bottom line: If your estate plan consists of a will alone, you are guaranteeing your family will have to go to court if you become incapacitated or when you die.
However, if your assets are titled properly in the name of your living trust, your family could avoid court altogether. In fact, assets held in a trust pass directly to your loved ones upon your death, without the need for any court intervention whatsoever. This can save your loved ones major time, money, and stress while dealing with the aftermath of your death.
2. Privacy
Probate is not only costly and time-consuming, but it’s also public. Once in probate, your will becomes part of the public record.
This means anyone interested can see the contents of your estate, who your beneficiaries are, as well as what and how much your loved ones inherit, making them tempting targets for frauds and scammers.
Using a living trust, the distribution of your assets can happen in private, so the contents and terms of your trust will also remain completely private. The only instance in which your trust would become open to the public is if someone challenges the document in court.
3. A Plan for Incapacity
A will only governs the distribution of your assets upon your death. It offers zero protection if you become incapacitated and are unable to make decisions about your own medical, financial, and legal needs.
If you become incapacitated with only a will in place, your family will have to petition the court to appoint a guardian to handle your affairs.
Guardianship Proceedings are Costly in Many Ways
Like probate, guardianship proceedings can be extremely costly, time-consuming, and emotional for your loved ones. And there’s always the possibility that the court could appoint a family member you'd never want making such critical decisions on your behalf.
Or the court might even select a professional guardian, putting a total stranger in control of just about every aspect of your life.
Trusts Avoid Guardianship Proceedings
With a living trust, however, you can include provisions that appoint someone of your choosing—not the court’s—to handle your assets if you’re unable to do so.
Combined with a well-drafted medical power of attorney and living will, a trust can keep your family out of court and conflict in the event of your incapacity.
4. Enhanced Control Over Asset Distribution
Another advantage a trust has over just having a will is the level of control it offers you when it comes to distributing assets to your heirs. By using a trust, you can specify when and how your heirs will receive your assets after your death.
For example, you could stipulate in the trust’s terms that the assets can only be distributed upon certain life events, such as the completion of college or the purchase of a home.
Trusts Allow You to Determine When Beneficiaries Receive Assets
Or you might spread out the distribution of assets over your beneficiaries' lifetime, releasing a percentage of the assets at different ages or life stages.
In this way, you can help prevent your beneficiaries from blowing through their inheritance all at once and offer incentives for them to demonstrate responsible behavior.
Trusts Allow for Asset Protection
Plus, as long as the assets are held in trust, they’re protected from the beneficiaries’ creditors, lawsuits, and divorce, which is something else wills don’t provide.
Testamentary Trusts are an Option, But They Don't Keep Your Family Out of Court
If, for some reason, you do not want a living trust, you can use a testamentary trust to establish trusts in your will.
A testamentary trust will not keep your family out of court, but it can allow you to control how and when your heirs receive your assets after your death.
An Informed Decision
The best way for you to determine whether or not your estate plan should include a living trust, a testamentary trust, or no trust at all is to meet with us for a Family Wealth Planning Session.
During this process, we’ll take you through an analysis of your personal assets, your family dynamics, what’s most important to you, and what will happen to your loved ones when you become incapacitated or die.
Sitting down with us to discuss your family’s planning needs will empower you to feel 100% confident that you have the right combination of planning solutions in place for your family’s unique circumstances. Schedule your appointment today to get started.
This article is a service of the Law Office of Keoni Souza, an estate planning law firm in Honolulu, Hawai`i. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That is why we offer a Family Wealth Planning Session, during which you will get more financially organized than you have ever been before and make all the best choices for the people you love. You can begin by contacting our office today to schedule a planning session and mention this article to find out how to get this $750 session at no charge.
Disclaimer: All information on this website is for informational purposes only and is not legal advice. You should contact an attorney trained to work with families on estate planning matters regarding your specific situation. Use of and access to this website or any of the email links contained within the site do not create an attorney-client relationship between the Law Office of Keoni Souza, LLC, and any users or any other party.
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