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I talk all the time about a Will and a Trust as two different things and I always get confused glares. Not sure about the differences between wills and trusts? You are not alone. While it’s always wise to contact experts like us, it’s also important to understand the basics. Here’s a quick and simple reference guide so you don’t have to glare confusedly when someone says that a Will and a Trust are very different:
What Revocable Living Trusts Can Do – That Wills Can’t
- Avoid a Guardianship. A revocable living trust allows you to authorize your spouse, partner, child, or other trusted person to manage your assets should you become incapacitated and unable to manage your own affairs. Wills only become effective when you die, so they are useless in avoiding a Guardianship proceeding during your life.
- Bypass probate. Property in a revocable living trust does not pass through probate. Property that passes using a Will guarantees The probate process, designed to wrap up a person’s affairs after satisfying outstanding debts, is public and can be costly and time consuming – sometimes taking years to resolve.
- Maintain privacy after death. Wills are public documents; trusts are not. Anyone, including noisy neighbors, predators, and unscrupulous “charities” can discover the details of your estate if you have a will. Trusts allow you to maintain your family’s privacy after death.
- Protect you from court challenges. Although court challenges to Wills and Trusts occur, attacking a Trust is generally much harder than attacking a Will because trust provisions are not made public.
What Wills Can Do – That Revocable Living Trusts Can’t
- Name guardians for children. It is believed that only a Will can name Guardians for your children. However, we prepare for our clients, as part of their Trust package, a series of documents to name guardians for minor children, both financial guardians and care-takers. These documents are subject to current state law, for example: family law in Florida, where the surviving parent would have more legal rights over the child’s custody than any other person designated as a guardian. However, you are still able to name an independent financial guardian for your minor child who is not the same person as the care-taker.
- Specify an executor or personal representative. Wills allow you to name an executor or personal representative – someone who will take responsibility to wrap up your estate after you die. This typically involves working with the probate court, protecting assets, paying your debts, and distributing what remains to beneficiaries. But, if there are no assets in your probate estate (because you have a fully funded revocable trust), this feature is not necessarily useful. However, a trust does not require a Personal Representative. A trust names a Trustee or Trustees to do the work during the life of the Grantor and after.
What Both Wills & Trusts Can Do:
- Allow revisions to your document. Both wills and trusts can be revised whenever your intentions or circumstances change so long as you have the legal capacity to execute them.
WARNING: There is such as a thing as irrevocable trusts, which cannot be changed without legal action.
- Name beneficiaries. Both wills and trusts are vehicles which allow you to name beneficiaries for your assets.
- Wills simply describe assets and proclaim who gets what. Only assets in your individual name will be controlled by a will.
- While trusts act similarly, you must go one step further and “transfer” the property into the trust – commonly referred to as “funding.” Only assets in the name of your trust will be controlled by your trust.
- Provide asset protection. Trusts, and less commonly, wills, are crafted to include protective sub-trusts which allow your beneficiaries access but keep the assets from being seized by their creditors such as divorcing spouses, car accident litigants, bankruptcy trustee, and business failure.
While some of the differences between wills and trusts are subtle; others are not. Together, we’ll take a look at your goals as well as your financial and family situation and design an estate plan tailored to your needs.
Give us a call at 305-456-7158 and we will schedule an Estate Planning Session for you or you can click Estate Planning Session to request we call you to schedule. Either way, do not wait, be protected and have peace of mind knowing you have the right estate plan.
Yahima Suarez, Esq.
Yahima Suarez, PA