Wills vs. Living Trusts: 6 Items to Consider

January 4, 2011
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All adults need at least a will.  Without one, state law determines what happens to your assets and minor children, and the results may not work out as you would expect or even like.

However, in many situations, it may be more appropriate to have a living trust (aka “revocable trust” or “revocable living trust”) as the centerpiece of your estate plan.  In such a case, you would still have a will, but its sole purpose is to transfer your remaining assets into the trust.

We previously discussed the advantages (and disadvantages) of having a living trust, including helping your loved ones avoid the costs and difficulties of probate after your death.  Let’s discuss the factors you need to consider when deciding between a will or living trust as your primary estate planning instrument:

Your Beneficiaries

  • If you have very few beneficiaries (such as your parents, or your spouse if you have no children), then a will is likely going to be more appropriate.
  • If your beneficiaries include minor children, you will likely need some trust planning, or else your kids will receive their inheritance outright at either age 18 or 21 (depending on your state law).
  • If you have a beneficiary who is disabled, a trust would help that person with their finances.  Additionally, a properly-drafted trust will enable the beneficiary to qualify for Medicare or Medicaid where appropriate.
  • A trust may also be necessary if you fear that your beneficiary will simply spend his inheritance unwisely.

Family Complexity

  • As implied above, a will is more appropriate when your family situation is simpler, including if your beneficiary children are to receive equal amounts.
  • Non-traditional families, including gay marriages, blended families, or unmarried couples most likely need to use living trusts to enable the desired partner to receive your assets rather than any other family member.

Your Health

  • If your health is good, and you are seemingly many years away from death or disability, a will may be fine.
  • On the other hand, if your health is not very good, then having your assets held in a living trust can help provide for your incapacity without interruption or unnecessary court costs.

Your Assets

  • To determine the level of assets you have, calculate what property you own outright.  Don’t include any life insurance, retirement plans, payable-on-death accounts, or jointly-owned real estate, because anything with a listed beneficiary or co-ownership will not pass according to your will.  Most states have a simplified probate or gifting procedure when the will is only dealing with property under a certain amount ($50,000 in Virginia, $25,000 in Pennsylvania, $30,000 in Maryland).  If your assets are less than your state’s amount, probate will be much less expensive, and you can get away with a will.
  • If you own real estate jointly with your spouse, partner or business associates, state law differs on what happens if such property is transferred to the trust.  Usually, your estate attorney will pay close attention to the asset protection benefits of your existing arrangement before transfer into a living trust.

Your Debts

  • This is one disadvantage of using a trust rather than a will.
  • Under state law, creditors have a limited amount of time to pursue debts against your estate; after this period expires, creditors are out of luck.
  • Trust assets are not afforded this protection, so creditors can pursue them for a longer period of time.  If you have a number of debts when you die, consider using a will instead of a trust.

Contests

  • If you believe someone will eventually challenge your distributions, you will likely be better off using a trust.  Trust assets are mostly distributed privately by your trustee.  A will is made public once filed at the county, and is more subject to a beneficiary’s protests.
 Wills vs. Living Trusts: 6 Items to Consider
 Wills vs. Living Trusts: 6 Items to Consider

Scott

Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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3 Responses to Wills vs. Living Trusts: 6 Items to Consider

  1. January 4, 2011 at 6:43 pm

    Another great post Scott, as always a good job of boiling down a complex estate planning topic into easily understood language. I do have to say though, the Pack will rule on Sunday.

    • Scott
      January 5, 2011 at 12:30 pm

      Over the holidays, I had a friend trying to convince another to just get a will. When I asked her why she preferred wills to living trusts, she told me that she had never heard of the latter. I think between people not knowing about trusts, the bad press they have gotten through aggressive marketing, and the prevailing belief that trusts are only for the rich makes these instruments greatly underutilized.

      Thanks again for your attention and support, Roger!

      Scott

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