The Difference Between a Living Trust and a Will

For those who have worked hard to build savings and buy property, they want to see passed on to their heirs, putting together the right estate plan can be the difference between having their wishes fulfilled or having their intentions derailed by lengthy court proceedings, legal fees, and taxes. To understand one of the most common pitfalls, it’s important to know the difference between a living trust and a will and what each of them can (and can’t) do.

Wills vs. Trusts

You’ve read it in books or seen it in movies—the dramatic scene where the last will and testament is read, revealing to the decedent’s heirs who will inherit. A will is a legal document that details your wishes for the distribution of your assets after your death; it can also provide information on important issues like appointing a guardian for minor children. However, a will on its own isn’t likely to be the best option for most people. That’s because if all you have is a will, your estate will still need to go through the probate process unless the total amount of assets to be distributed is so low it qualifies for simplified procedures. (In California, that threshold is so low that anyone who owns even a modest home will exceed it.)

A living trust, on the other hand, is a legal arrangement that becomes valid while you are alive, immediately after you execute documents. The property you put into the trust—such as real estate, bank accounts, stocks, etc.—is owned by the trust, but you still control them. Unlike a will, a living trust is not a public record, so the terms of your trust can remain private. But its primary advantage for an estate is that it allows your assets to pass to your heirs without probate, reducing the cost and time it takes for them to benefit.

While some may assume that the relatively modest size of their estate doesn’t justify setting up a living trust, for the vast majority of people that isn’t the case. Even though there is a higher upfront cost in setting up a trust as compared to a will, the savings in taxes and probate fees make it worthwhile in almost all cases.

A living trust can also be configured to ensure your assets aren’t passed on in ways you didn’t intend, especially if your family situation is complicated. For example, you can specify in a trust when beneficiaries like a minor child, grandchild, or special-needs relative will have access to assets—it doesn’t need to be immediately upon your death. In the case of a blended family, perhaps with children from previous marriages on both sides, a living trust can be designed to pass on first-marriage assets intended for different sets of children as their parents wished, reducing the potential for family conflict over the estate.

One important caveat is that a trust is not effective unless assets are transferred into it. An experienced estate planning attorney can help you determine what property and accounts should be titled in your trust’s name, and help you conduct periodic reviews over the years to ensure that changes in your circumstances have not left assets exposed outside of your trust. Your attorney can also take into account assets like individual retirement accounts (IRAs), 401(k)s, and life insurance policies; while these are generally passed on by naming an individual beneficiary rather than being put into a trust, they should be considered as part of your comprehensive estate plan to avoid unintended consequences.

Your Southern California Estate Planning Experts

Velasco Law Group knows the elements that belong in a well-thought-out estate plan and how to translate your wishes into legal language that will stand up to challenges. If you’re confused about your options, we can help you determine the best method for passing on your assets the way you intend, whether your situation is complex or straightforward. To better serve our Southern California community, our experienced attorneys offer legal services in both English and Spanish. To find out more about our estate planning services or to schedule a free initial consultation, contact us here today.