Often the first question I get regarding estate planning is whether someone should have a will or a trust. Unfortunately, there isn’t a bright-line answer. Wills and trusts are simply different tools available to create an estate plan. One is not necessarily better than the other; they are used for different purposes depending on what your goals are for how your assets should be given to your family and friends.
Generally, a will provides instructions for how your assets are divided at your death. A personal representative is appointed to oversee the division of the assets to ensure it’s done to your wishes. Once the assets have been divided, the estate is closed.
A trust is an instrument that establishes a fiduciary arrangement, which gives a Trustee the authority to hold assets on behalf of beneficiaries. The trust instrument specifies how and when assets should be passed to the beneficiaries. Trust can last long after your death, so they can be useful if you want to have control over asset distribution in the years following your death.
Below is a chart depicting some of the basic differences between a will and a trust.
|Court oversees the administration through probate
|Court does not oversee the administration
|Personal Representative compensated once during probate
|Trustee compensated on a recurring basis, usually annually
|Goes into effect at the time of death
|Can be created prior to death
|Covers property only in your name at the time of death
|Covers only property transferred into the trust
|Part of the public record
|Allows for appointment of a guardian for minor children
|Cannot use it to appoint guardian for minor children
|Allows for instructions regarding funeral arrangements
|Cannot specify funeral arrangements
|Cannot be used to plan for a disability
|Can be used to plan for a disability
|Typically does not offer tax savings
|May offer tax savings
This website includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems.
Lauren Lester is an affordable family law, estate planning, and probate lawyer licensed in Colorado.