After considering Who Needs a Will?
The probate process can be avoided while still maintaining a very high degree of certainty that your estate will be handled by the persons who choose, the way you want it handled, by using a living Trust. Unlike a Will, where the job is done when the Will is signed, a client (and/or the attorney) needs to follow up the signing of a living Trust by transferring assets to the Trust. Thus, a living Trust is more complex, more expensive and more work than a Will to set up.
A living Trust is more complex, more expensive, and more time-consuming to set up, but it eliminates all of the cost and delay of probate on the back end and makes the handling of your estate much more streamlined, simple and less costly after you are gone. The additional cost and the additional work involved at the front end pays dividends in less work, less cost and less delay at the back end.
Whether to choose a living Trust as the primary vehicle of your estate planning is not a right or wrong or one size fits all answer. Each person needs to weigh the benefits against the costs, and weigh the burdens against the limitations, and make an individualized decision.
A living Trust will be more expensive and require more work from you on the front end, but it will benefit your children or other loved ones on the back end by making things simpler, more efficient and less costly for them.
A Will is simpler and less costly on the front end, but more costly and complicated on the back end (probate). A Will provides a high likelihood that your desired goals will be attained, but there are limitations. A living Trust provides an even greater likelihood of achieving your goals on the back end by providing a solution to overcome some of the limitations of a Will.
The key is in understanding the cost-benefit analysis for you so that you can make an informed decision. A good attorney should be able to walk you through that cost-benefit analysis tailored to your particular circumstances, including the cost of doing a Will vs. doing a Trust.
If using a Trust as the primary vehicle of your estate planning, you will still do a Will, but the Will is only done to address assets that don’t get transferred to the Trust during life. You may still have some assets with beneficiary designations that will go directly to those beneficiaries when you die. In practice, these “options” are not mutually exclusive. They are all tools that can be employed together in a comprehensive plan that accomplish your goals.
Your decision on what estate planning tools to use should be made with some comparison and understanding of those various options. Any experienced and reputable estate planning attorney can fill in the blanks in your understanding of those various options and guide you in using those tools to match your preferences and your circumstances.
I will unpack what a Trust is, how they work and how they can be used to accomplish your estate planning goals in the article, Avoiding Probate is a Matter of Trust.
