What is the difference between a will and a trust?

A will is a document that is used after you die to give instructions to your executor about what to do with your property. Even though you have a legally executed will, the Courts must still be involved. This is called Probate. The duty of the Probate Court is to be sure that your wishes are followed and are in compliance with the law. Your will can split up your property from something that is minor, like your personal possessions, up to and including assets of any value including your cash, investments, your home and other real property. What a will does NOT do is help you while you are living if you become unable to manage your affairs.

A trust is a document that does everything a will does and more. One of the first advantages of a trust is that it avoids Probate Court, and the attorney fees that have to be paid in the Probate process. Since you transfer your property into a trust when you create one, your death does not affect the title of your property. Your trust owns your property and a trust cannot “die.” And even though your property is owned by your trust, you still continue to control it, just as if you did not have a trust. You still write checks on your checking account, buy and sell your cars at will, buy and sell your home at will.

With the help of an experienced estate attorney, when you work to set up your trust, you will talk about your assets in two parts—what is to happen while you are still alive, and what is to happen after death. In your trust you will name someone you trust to follow your wishes and you will clearly state those wishes.

If something happens to you and you are not able to manage your affairs—if you become incapacitated—your trustee will take over seamlessly and will follow your instructions. That includes using your assets, if you so directed, to continue to pay for your care and treatment. Or to continue to use your assets to pay for the care of your loved ones.

After you die, your trustee will again follow your instructions. A good attorney will help you think through many different scenarios and help you design your trust so that it will do what you want. You may want to protect your spouse from “fortune hunters” or a child from being unduly influenced by their spouse or a future spouse. You may have kids or grandkids that you want to help through college. You might want your children to get your assets after they have matured enough to use their inheritance wisely, or you may want to have your heirs receive their inheritance on a staggered schedule. If you can think of it, a trust can be designed to do it.

The best thing to do is to go talk to an experienced attorney who can help you decide which is better for you and your family—a will or a trust.

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