Over the last 20 years or so, living trusts have been heavily marketed as being superior to standard wills. You probably have received at least one invitation to a free seminar for a presentation on this subject. So, what is preferable, a will or a living trust? The answer is not the same for everyone. We believe that our clients’ needs are all unique, and a consultation with an attorney experienced in estate planning is needed in order to be properly advised on this subject.
Wills
This should be a lawyer’s primary estate planning tool. A will is less
expensive than a living trust. It can clearly establish how an estate is to be distributed. You can name who is to administer your estate, as well as naming who will be the guardian of your minor children.
In addition, a “family trust” can be established through a will, for the purpose of extending the age of a child beyond age 18 before final distribution of his/her share of the estate is made. Provisions for avoiding or minimizing estate taxes can also be made through another type of trust established within the will. Probate proceedings are required in order to enforce the terms of a will.
Living Trusts
The primary reason that is used to promote living trusts is to
avoid probate. For some, this is a very good reason to use this estate planning tool. Probate does require some time and expenses that can be reduced by using a living trust. A living trust can also be used in place of a conservatorship of your estate, in the event you become incapacitated. The administration of a living trust is not required to be publicized, as in a probate proceeding. There are some disadvantages to living trusts, primarily the additional expense required in setting it up. In addition, it is necessary to transfer ownership of your assets to your living trust in order to receive the benefits that a living trust provides.
These are issues that an estate planning attorney can assist you with. We have represented hundreds of clients in their estate planning, and we do not believe that a cookie cutter mentality should be used in deciding what type of document is best for you. Please call us if you have questions in this area and would like a consultation. We can let you know what is best for your needs, as well as the comparative costs of a will or a living trust.