The Basics of Wills vs. Trusts: Which is Right for You?

When it comes to creating your estate plan, if you've never done it before (or maybe you didn't have a great experience with your prior attorney), there can be a variety of confusing terms that you run into. Some of them can be confusing words that you've never heard before (like ademption), but many are common terms that you've heard, but aren't really sure what they mean. It's important to understand the core terminology of an estate plan and one of the most important distinctions is between a Will and a Trust.

While they are often used together, a Will and a Trust are separate documents and have differences between them. It's important to understand both documents and how they interact with each other. In most cases, if you are creating a trust-based estate plan, you will also have a will as part of your plan. However, if you are creating an estate plan with just a will, a trust may not always be necessary for you to protect your legacy.

What Is a Will?

A last will and testament, commonly called a "Will" is a legal document that outlines how you want your assets distributed after your death. It allows you to:

Name beneficiaries: Specify who will inherit your assets, such as property, money, or personal items.
Appoint a guardian: If you have minor children, you can name a guardian to care for them.
Designate a personal representative: The personal representative ensures your wishes are carried out by managing your estate and handling legal and financial matters.
State final wishes: Include instructions for your funeral or burial preferences, if desired.

Creating a will is relatively straightforward, and it’s often the first step in estate planning. However, a will must go through probate — a court-supervised process—to validate its authenticity and ensure proper distribution of your assets. Probate can be time-consuming and costly, depending on your state’s laws and the complexity of your estate.

What Is a Trust?

A trust is a legal arrangement where one party (the trustee) holds and manages assets on behalf of another party (the beneficiary). There are two main types of trusts:

Revocable Trusts: Also known as living trusts, these can be changed or revoked by the grantor (the person who creates the trust) during their lifetime. A revocable trust becomes irrevocable upon the grantor’s death.
Irrevocable Trusts: Once established, these cannot be changed or revoked. Assets transferred to an irrevocable trust are no longer considered the grantor’s property, which can offer tax benefits and protection from creditors, but you've also lost the ability to control those assets once you no longer own them.

Some key features of a trust include:

Avoiding probate: Assets held in a trust bypass the probate process, enabling a quicker and more private distribution.
Flexibility: Trusts can include specific instructions on how and when assets are distributed to beneficiaries.
Asset protection: Irrevocable trusts can shield assets from creditors and lawsuits.
Incapacity planning: A revocable trust allows a successor trustee to manage your assets if you become incapacitated.

Wills vs. Trusts: Key Differences

Understanding the differences between wills and trusts can help you make an informed decision:

Feature	Will	Trust
Governs	Assets in your name only	Assets transferred to the trust
Probate	Required	Avoided
Privacy	Public record	Private
Incapacity planning	Not covered	Covered (for revocable trusts)
Cost	Less expensive initially	Higher upfront cost
Flexibility	Simpler, but less flexible	More detailed and flexible

Pros and Cons of Wills

In almost every estate plan that we create, a Will is one of the documents. There are rare occasions where a Will is not needed, but generally, it will be the foundation of your plan. Even though it's a foundational document, there are Pros and Cons to Wills:

Pros:

Easy to create and cost-effective.
Allows you to name guardians for minor children.
Suitable for straightforward estates.

Cons:

Subject to probate, which can be lengthy and expensive.
Becomes a public record, compromising privacy.
Does not include incapacity planning.

Pros and Cons of Trusts

Whether to use a trust or not usually generates more discussion. Unlike a Will, a Trust is not necessarily a foundational document for an estate plan. Often times, the extra work and administration that is needed does not create enough benefit for your estate plan and you can accomplish your goals using other estate planning techniques.

Pros:

Avoids probate, ensuring quicker and private distribution of assets.
Offers detailed instructions for asset management and distribution.
Includes incapacity planning.
May provide tax benefits and asset protection.

Cons:

Higher upfront costs and complexity to establish.
Requires ongoing management to ensure assets are properly titled.
Not necessary for small or simple estates.

Choosing Between a Will and a Trust

This is why you are reading this blog, it's the most common question that my clients have when looking at using a will-based plan alone or adding a trust to the estate plan. Some considerations for you to think about:

Complexity of your estate: If you have substantial assets, business interests, or multiple beneficiaries, a trust may provide the flexibility and control you need.
Privacy concerns: If you value privacy, a trust keeps your estate details out of the public record.
Desire to avoid probate: A trust allows your heirs to bypass probate, saving time and legal fees.
Incapacity planning: If you want to ensure someone can manage your assets if you become incapacitated, a trust is essential.
Cost considerations: A will is less expensive initially, but the probate process may increase overall costs for your estate.

Using Wills and Trusts Together

As I've mentioned a few times, it's common to use a Will and Trust together. They are not mutually exclusive and there is often good reason to use both in your estate plan, like using a will to:

Appoint guardians for minor children.
Address assets not included in the trust (via a pour-over will).
Provide backup instructions in case the trust is invalid.

A trust can then handle the bulk of your estate, ensuring a smooth transition of assets and addressing specific distribution needs.

Working with Estate Planning Professionals

Estate planning can be complex, and the laws vary by state. You should be working with an attorney, a financial advisor, and an accountant to be sure you are considering the various impacts that your estate plan will have on your legacy.

Wills and trusts are powerful tools for managing your estate, but they serve different purposes and offer unique advantages. Whether you choose a will, a trust, or a combination of both, taking the time to plan your estate is a meaningful step in protecting your legacy and providing peace of mind for your loved ones.

Do You Need an Estate Planning Attorney?

If you need a full estate plan, let's schedule a Legal Strategy Session online or by calling my Edina, Minnesota office at (612) 294-6982 or my New York City office at (646) 847-3560. My office will be happy to find a convenient time for us to have a phone call to review the best options and next steps for you to work with an estate planning attorney to get your plan prepared and implemented.