What are the differences between a Will and a Revocable Trust?

Many people have heard of both Wills and Trusts, but do you understand what makes them distinct from each other? As with numerous estate planning topics, it is sometimes difficult to distinguish what the differences between the two are and when one is more appropriate than the other in your estate planning. Depending upon your individual situation, the combination of a Will and a Trust may be the best way to ensure that your assets are protected and transferred in the manner of your choice.

Wills and Trusts are both useful estate planning tools because they allow assets such as money and property to be transferred to other people or organizations. Perhaps the biggest difference between the two is the respective timelines for distribution of assets. A Will distributes your assets at your death. Trusts, on the other hand, can distribute assets before your death, upon your death, or even for a period of time after your death, depending on the language governing your particular trust.

Another major difference is the process under which a Will and a Trust distribute assets. Wills go through a court controlled process called probate, while Trusts generally operate outside of the court’s supervision. During the probate process, the court verifies the legality of the Will and oversees the distribution of the estate according to the written wishes of the deceased. From an economic standpoint, the creation of a Trust is more expensive initially, where probating a Will takes time and money later. If privacy is a concern, another difference is that the terms of a Will become public record, while Trust terms are not openly shared.

If properly drafted, Trusts generally do not go through the probate process. This is because the property that you transfer into a Trust becomes the property of the Trust itself, therefore, no longer being titled in your name. For example, a house that Jane Doe transfers into a Trust is subsequently owned by the Jane Doe Trust, not Jane herself. If the house was left in Jane’s name alone, the house would pass through probate and be directed by Jane’s Will. While living, Jane retains access to the house in the Trust as long as the trust parameters grant it to her. During the Trust drafting period, Jane determines how she wants house in the Trust to be used during her life, as well as how they are to be treated after her death by selecting beneficiaries to receive the house. When Jane passes away, with the house in the Trust, there is technically no change in direct ownership of the house. Through the use of specific distribution and beneficiary language, an Elder Law Attorney could counsel Jane on how to create a trust that allows the house to benefit numerous people for a period of time that extends beyond her own life. This is a unique concept created through Trust law, as a Will generally does not offer the ability to exercise long-term control after one’s death.

This information is meant to provide a quick and basic summary of Wills and Trusts. Despite being different from an operational standpoint, it is important to note that Wills and Trusts often work in tandem by holistically supporting the various goals of an estate plan. Each state has unique laws, and there are many different ways to implement Wills and/or Trusts into your individualized planning. Be sure to consult with an Elder Law Attorney to learn more about the options that best effectuate your wishes.

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