In short, a will is a legal document that allows a person (also known as the “testator”) to designate the way in which their property will be distributed upon their death to specific beneficiaries. The property may consist of real or personal property. In order to execute a valid will, there are requirements that the testor must meet. 

The requirements that need to be met to execute a valid will vary according to state law, but generally the requirements include the following:

  • Signed Writing: In order to satisfy the statute of frauds, most states require that a valid will, whether normal or holographic, be in writing and signed by the testator;
  • Witnessed: Most states also require that the will be witnessed, generally by two or more non-interested witnesses, in order to prove that the testator had both the mental capacity and the intent to sign the will. However, witnesses may not be needed for holographic wills, which are wills that are handwritten and signed by the testator;
  • Identify Property, Beneficiaries, and Contain Necessary Formalities: A will must also contain an identification of what property the testator wishes to dispose of, how they wish to dispose of it, and to whom the property should be given to. Further, the will must contain any other necessary formalities required by the state, such as naming an executor; and
  • Testamentary Capacity: In order to execute a valid will, the person creating the will must have the proper testamentary capacity

After all of the above requirements are met, a valid will is created. Further, if the will signing was attested to by two competent and non interested witnesses, the will may become an attested will. This will often help the testator’s beneficiaries save time and expense in the probate process. This is especially true if the will is accompanied by a self-proving affidavit

What is Testamentary Capacity?

As mentioned above, in order to create a valid will, a testator must possess the testamentary capacity to do so. There are several requirements that a testator must meet in order to prove that they possess the testamentary capacity necessary to create a valid will. These may include:

  • Age: In most states this means that the testator must be at least 18 years old, married, or a member of the armed forces;
  • Intent: The testator must have the intent to create the will. This means that the testator wanted to create a will, and not that they were forced to do so whether through fraud or undue influence; and
  • Mental Capacity: The testator must also possess the mental capacity to form a valid will. This typically means that the testator must know that they are signing a will, know the property which they are disposing of, and understand who they are disposing of the property to. Modernly, attorneys may videotape the signing of a will, in case they later have to prove that the testator had proper mental capacity

What is a Trust?

Simply put, a trust is a legal instrument where one individual holds property for the benefit of another person, known as a beneficiary. Typically, the requirements of forming a trust are similar to the requirements of forming a will. 

Generally the requirements for creating the trust are as follows: 

  • The person creating the trust must have capacity, coupled with the intention of creating a trust expressed with any necessary formalities, such as the trust being in writing;
  • There must be specific and identifiable trust property; 
  • There must be a sufficiently identifiable beneficiary, meaning a good enough description to know who the property is held to benefit; and 
  • The trust must proper, i.e. it cannot be created for an illegal reason. 

How are Wills and Trusts Different?

Unlike wills, the effects of a trust can occur while the creator is still alive; this is known as an “inter vivos” or “living” trust. Although a will distributes one’s property upon the death of the testator, a trust can distribute a person’s property before an individual’s death. 

Next, as mentioned above, a valid will normally has to go through the probate process. Probate is the process in which the assets and property of the testator are distributed, and is often a complicated, long, and expensive process. Trusts on the other hand do not have to go through any sort of probate process. However, the creation of a trust is oftentimes more expensive than the creation of a will. In addition to the cost of creating a trust, the trust property must also be managed by a trustee, meaning there are additional expenses beyond the creation of the trust instrument. 

Lastly, when wills are admitted to probate, the assets and property of the testator are exposed to the public, as the process is public. However, trusts and trust property are private and confidential. Additionally, trust property may be exempt from the reach of creditors. For example, if a valid spendthrift trust is created, then the trust property will be not reachable by certain creditors.

Should I Hire an Attorney if I Need Help with Wills or Trusts?

As can be seen, there are numerous advantages and disadvantages of creating a will over a trust or a trust over a will. Therefore, if you are in the process of making plans for the distribution of your property, it is in your best interests to consult with a well qualified and knowledgeable estate attorney in your area. 

An experienced estate attorney will be able to help you determine whether a trust, will, or both are the best choice for handling your assets and wishes. Further, they will be able to assist you in properly creating either instrument, so that the instrument conforms with the requirements of your state.