Both living trusts and wills are legal instruments that are used to transfer property or assets to another person. However, there are some major differences between living trust and wills. First, living trusts go into effect while the property owner is still living. That is, the property transfers to a trustee, who holds it in trust for the beneficiary. All this occurs while the trust creator is still living. This sometimes allows the trust creator to revoke the will if that is allowed.
In comparison, wills go into effect when the person is deceased. The property is managed by an administrator, who is responsible for the property reaching the beneficiaries upon the property owner’s death. Thus, wills are more final and are less subject to change.
When Should a Will Be Used Instead of a Trust?
If you need to distribute property, you often have a choice between a number of different legal instruments, including trusts and wills. Here are some points to consider when making a transfer of property:
- Trusts are usually used for transferring specific items of property for a specific reason; wills generally cover the entire person’s estate.
- Trusts can often be revoked (as in a revocable trust), whereas wills are final and take effect upon the person’s death.
- Trusts are often used when there are conditions attached to the transfer of property (such as, "Beneficiary X can receive the property once they finish college").
- Without a will, the person’s property will go through the state process (probate). Transferring property before death through a living will can help avoid the probate process.
Lastly, there are various procedures for amending wills and trusts. For instance, they generally need to be signed and witnessed by two uninterested parties. Thus, it’s ok to make amendments if your life circumstances change over time. This is common for major changes like marriages, divorces, remarrying, childbirth/adoption, and other changes.
Trust and will contests can often prolong or delay the distribution process. Thus, it’s important that you be as clear as possible when indicating your intentions in a trust or will document.
Do I Need a Lawyer for Help with Trusts or Will Documents?
Transferring property through a trust or will can often involve many different steps and considerations. You may need to hire an estate lawyer for help reviewing and creating legal documents. An experienced lawyer near you can help you avoid legal conflicts in the future regarding the property. Also, your lawyer can provide you with legal assistance in court if you’re facing a legal dispute.