Will or Revocable Living Trust – Which is Right for Me?

One of the first estate planning decisions you will need to make is whether to use a Will or Revocable Living Trust to achieve your estate planning goals. Understanding the differences between the two can help you make an informed choice that aligns with your goals and objectives.

In this article, I will discuss differences between wills and revocable trusts, explore their advantages and disadvantages, and provide valuable insights to help you make an informed decision about which option is right for you.

How Wills Work

Wills are foundational legal documents that outline who should receive your property after you die. A will allows you to:

1. Name Beneficiaries of your Property: A will specifies who should receive your assets and property upon your death. Whether it’s real estate, financial accounts, personal belongings, or sentimental heirlooms, your will provides instructions for the distribution of these assets among your chosen beneficiaries.
2. Designate Guardians: If you have minor children, a will allows you to designate guardians who will assume responsibility for their care and upbringing in the event of your death. This provision ensures that your children are cared for by individuals whom you trust and who share your values and beliefs.
3. Appointment and Executor: An executor will carry out the instructions outlined in the document. The executor’s responsibilities include gathering your assets, paying off debts and taxes, and distributing your property to your beneficiaries.

How Living Trusts Work

Revocable living trusts offer a more flexible and comprehensive approach to estate planning. In addition to facilitating the transfer of assets to your beneficiaries upon your death, a revocable trust serves as a valuable management tool during your lifetime. It allows you to:

1. Manage Assets: Like a will, a revocable trust allows you to transfer ownership of your assets to designated beneficiaries. However, unlike a will, which only becomes effective upon your death, a revocable trust takes effect immediately when you create it, enabling you to manage your assets during your lifetime.
2. Plan for Incapacity: One of the key advantages of a revocable trust is its ability to provide for incapacity planning. If you become incapacitated due to illness, injury, or advanced age, the successor trustee you’ve appointed can seamlessly step in to manage the trust assets on your behalf. This ensures that your financial affairs continue to be handled according to your wishes, without the need for court intervention or guardianship proceedings.
3. Protect your Privacy: Unlike the probate process associated with wills, which can be time-consuming, expensive, and subject to public scrutiny, the administration of a revocable trust remains private and efficient. Since assets held in a trust bypass probate, the distribution of your estate can occur without unnecessary delays or expenses, preserving your privacy and minimizing administrative burdens for your loved ones.

Comparing Wills and Revocable Trusts for Achieving your Goals

Wills are relatively simple and cost-effective to create, which makes them appealing and accessible to many people. Once you sign your will, you’re done. You tuck it away but review it periodically to ensure it’s still accomplishing your estate planning goals. If something changes, you can update your Will to address those changes.

There are no assets to transfer while you are living. That won’t happen until after you die during the probate process. So, although Will-based plans don’t require as much of a financial investment upfront, they can result in costs and delays associated with probate proceedings, which may ultimately outweigh any initial savings.

Revocable trusts require a bigger investment and time commitment initially because there are more documents to prepare and assets to transfer. You’ll still have a Will, but an abbreviated one called a pour- over Will. The purpose of a pour-over Will purpose is to act as a safety net. It captures anything left out of the Revocable Trust and pours it into your Trust at death. Your operating document will be your Trust Agreement, which will outline not only how your property will be distributed after you die, but also how it will be managed while you are living.

Although a pour-over Will will capture property left out of your trust and pour it into your trust at your death, you’ll need to fully fund your trust to avoid probate. This requires transferring assets, retitling assets, and aligning non-probate assets with your trust. A fully funded revocable makes probate unnecessary, which results in more privacy and flexibility in managing assets during your life and after your death. However, if you’d rather not make the financial and time commitment, then a Will might be more appropriate for you.

Choosing Your Path: Will vs. Revocable Trust

Whether you choose a will or revocable living trust depends on your individual circumstances, goals, and preferences.

Many people assume Wills are only for people with uncomplicated estates and minimal assets. Likewise, many people assume that Revocable Trusts are only for people with substantial assets and complex family situations. While those are some of the factors to consider when deciding whether to choose a Will or Revocable Trust based plan, other important factors include:

Cost

For cost-conscious clients, the most cost-effective way to achieve your estate planning goals is with a Will. Establishing a Will typically involves lower upfront costs compared to establishing a revocable trust. The majority of the costs accrue after your death during the probate process, which can easily add up to several thousand dollars. In 2024, the average cost of probate, including attorney’s fees and court costs, is between $3,000 and $4,000. If you want to engage in estate planning but want to minimize your immediate costs, a Will may be your best choice.

Revocable living trusts require a bigger upfront investment, but may result in more cost savings after your death. When your trust is fully funded, your estate can bypass the probate process altogether. This can spare your estate from the associated fees and time delays. Therefore, if you prioritize long-term cost efficiency and want to spare your beneficiaries from the complexities of probate, a revocable trust may be the better option.

Privacy

Probate is the legal process in which a court validates the will and appoints an executor who will oversee the distribution of assets, settle debts, and distribute property according to the terms of your Will. Your Will, along with details of your estate and beneficiaries, will becomes part of the public record, subject to scrutiny and prying eyes. If privacy is not a concern for you, then a Will may accomplish your goals.

However, if you prioritize discretion and would like to maintain the confidentiality of your financial affairs, a trust may be a better option. A fully-funded revocable living trust ensures that your estate details remain private. Unlike the public nature of probate, which exposes your financial affairs to anyone with an interest, a trust administration keeps sensitive information confidential. This protects your privacy and the privacy of your beneficiaries.

Continuity of Management During Incapacity

Wills don’t provide any disability management features. Therefore, those with Will-based plan should have a robust durable power of attorney naming an agent to handle their financial affairs. A financial power of attorney empowers your designated agent to act on your behalf without the need for court intervention or guardianship proceedings.

However, it’s important to recognize that financial powers of attorney have their limitations. Depending on the scope of authority granted, there may be restrictions or gaps in the agent’s ability to handle certain transactions or make decisions about specific assets. Additionally, financial institutions or third parties may require additional documentation or verification of the agent’s authority, which can pose challenges in accessing and managing assets.

With a revocable living trust, you can designate a successor trustee—typically a trusted family member, friend, or professional advisor—who will seamlessly take over the management of the trust assets if you become unable to do so yourself. This ensures continuity in managing your financial affairs without the the hurdles some agents face, which is especially appealing for business owners. For those prioritizing a robust and efficient incapacity planning strategy, revocable trusts are an appealing choice.

Immediate Access to Funds

In the event of incapacity, you may require immediate access to funds to cover medical expenses, ongoing living expenses, and other financial obligations. Unlike assets held in your individual name, which may be more difficult to access by an agent under a power of attorney, assets held in a revocable trust can be accessed by the successor trustee without interruption. This provides for timely and efficient management of your financial affairs when you need it most.

Avoiding Probate in Multiple States

Without a trust, each property you own in a different state may require separate probate proceedings to transfer. This can be time-consuming and costly. By placing real property within a revocable trust, individuals can sidestep the need for probate in each state where property is held. This streamlined approach not only saves time and money but also ensures a more efficient transfer of assets to beneficiaries, regardless of geographical boundaries.

That being said, some states, such as Texas, authorize the use of transfer on death deeds to transfer property to beneficiaries without a probate process. For individuals with relatively simple estate planning needs and property in states that authorize use of beneficiary deeds, a Will in combination with beneficiary deeds can minimize the expense of probate in multiple jurisdictions.

Contest

If you anticipate someone to contest your estate plan, a trust may be the better option. While it is possible to contest both wills and revocable trusts, revocable trusts are generally more difficult to challenge due to their private nature and the clear documentation of the grantor’s intentions.

Do I get Asset Protection if I Create a Revocable Trust

A revocable living trust managing and distributing assets efficiently and according to your wishes. It is not an asset protection tool. Because you can revoke the trust and transfer assets in and out of the trust, creditors will be able to reach into it.

An experienced estate planning attorney can help you evaluate your options and create a comprehensive plan that aligns with your estate planning goals.