Trust vs. Will: How Are They Different?
- Trusts and wills have different uses, and it's important for seniors to understand these differences when making end-of-life and estate-planning decisions.
Figuring out what will happen with their estate is something every adult — and certainly every older adult — must contend with at some point. When considering estate-planning options, it's important to know the difference between a trust vs. a will, so you'll be able to choose the best option for your estate.
One major difference between a trust and a will is that a will only takes effect upon someone's death, while a trust can begin distributing assets at any point depending on how it's set up.
Trust vs. Will: What Is Better?
The short answer is that while almost everyone should have a will, some people should have a trust in addition to a will.
Situations Where You Only Need a Will
Wills are generally the way to go for uncomplicated estates. Some of the criteria for having a will vs. a trust include the following:
- Having an estate with less than $200,000 in assets
- Owning one or no properties
- Not wanting to get involved in the process of setting up a trust with an attorney or deal with the cost (which can be several thousand dollars if using an attorney)
Situations Where You Might Need a Trust
While anyone can establish a trust, they're often associated with higher-value estates. Some of the criteria for having a trust instead of (or in addition to) a will include the following:
- Having an estate with $200,000 or more in assets
- Owning more than one property, especially if these properties are in two or more states
- Not wanting beneficiaries to have to deal with the probate process before receiving the estate's assets (a process that can typically take a year to sort out or as long as 3 years if the estate is complicated or disputes arise)
- Wanting assets to begin to be distributed before death or in the case of incapacitation
- Wanting privacy for heirs because probate proceedings are public record, while trusts are private
What Are the Different Types of Trusts?
- Irrevocable trust: With this arrangement, the grantor — the person establishing the trust — can't control or change what happens with the trust after it's set up. Instead, everything is controlled by a trustee. Any income that results from assets in the trust is no longer part of the grantor's tax burden and is shielded from the grantor's creditors.
- Revocable trust: In this type of trust, the grantor retains control of the trust and can change or end it if they choose to. Since they serve as the trustee, the assets are part of their tax liability.
- Charitable trust: As the name implies, this type is used to distribute a certain amount of the grantor's assets to charity and can offer tax benefits, depending on how it's set up.
- Special needs trust: This type of trust distributes assets to a beneficiary who has a disability (without affecting the beneficiary's government-benefit status).
Does Someone Need a Will if They Have a Trust?
Even if someone establishes a trust to distribute their assets before or after they die, there are many things a trust can't do that a will can. They include the following:
- A parent or guardian of minor children can't name a guardian using a trust
- Debts owed can't be canceled with a trust, but a person can use their will to cancel out debts owed to them
- Assets may have been inadvertently omitted from a trust, or recently acquired assets may not have yet been listed in the trust, but a will accounts for all assets
That's why it's a good idea to have a will in addition to a trust. The will can be very simple, but it should prevent any of the issues mentioned above from becoming a headache for the estate to sort out.
One option for anyone with a trust who wants to create a will is to create a "pour-over will." With this type of will, all assets that weren't already handled by the trust get "poured into" the trust. The main disadvantage of using a pour-over will to add assets to the trust posthumously is that these assets will be subject to the probate process.