If you have a have a trust, do you also need a will? Even if you transfer the majority of your property through a living trust or other estate planning tool, you should also have a will. Without a will, any property that isn’t passed along to beneficiaries by those other tools will be subject to intestacy laws, which means the state takes control and determines who will receive the property.
Even if other estate planning tools address your property, you’ll want a will in order to name an executor who will be in charge of wrapping up your estate, to name guardians for minor children, and to name property guardians who will manage your children’s property.
Everyone should have will, but everyone does not need a trust, which depends on how old you are, how wealthy you are, and whether or you are married.
Both wills and irrevocable living trusts allow an individual to name beneficiaries for any property. After that, they serve different purposes. The primary reason individuals use a living trust is to avoid probate. However, living trusts are complicated to write and cannot be used to name an executor for your estate or to name guardians for any minor children. A will is required to do those things.
Basic Characteristics of a Will
Here is a list of the basic characteristics of a will:
- Name beneficiaries of any property,
- Easily able to be revised,
- Name guardians for any minor children,
- Name property managers for any property left to minor children,
- Name an executor,
- Leave instructions regarding how any debts and taxes should be paid,
- Easy to write, and
- Requires two witnesses.
Basic Characteristics of a Living Trust
Here is a list of the basic characteristics of a living trust:
- Name beneficiaries of any property,
- Leave property to minor children,
- Easily able to be revised,
- Able to avoid probate,
- Allows for privacy after death,
- Requires a signature from a notary public,
- Requires the transfer of property, and
- Provides protection from possible court challenges.
Naming Beneficiaries of Property
The main function of both a trust and a will is to name which beneficiaries you want to receive your property. When writing a will you only have to describe the property or assets and list which individuals should receive it. When writing a trust, you do the same thing but you also have to transfer the property into the trust.
Leaving Property to Minor Children
Minor children cannot legally own any property, except for items of minimal value. If you leave property to any minor children, an adult must manage it until the child turns at least 18. You can choose the individual whom you want to trust with this position in either your will or your trust.
Avoiding Probate
Probate is a court system, which reviews the will to determine its validity and authenticity. Its purpose is to close out a person’s affairs after their debts have all been paid. The probate process can take a long time and can be quite expensive. However, any property passed through a living trust does not need to go through the probate process. This property can be distributed to the beneficiaries following the death of the grantor, without incurring any fees or guidance from the court. This is the primary reason individuals choose to have a living trust.
However, if you do not own a lot of property, or if you have a lot of debt, you probably do not need to avoid probate, making the creation of a living trust unnecessary.
Privacy
As a will has to go to probate, it becomes a public document after you die. A living trust never becomes a public document, allowing you to keep your affairs private.
Final Word
Every adult should have a will. However, not every adult needs a trust. This depends on the individual, their marital and financial status, and personal desires. Wills and trusts work together, and not against each other.
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