The Difference Between Wills and Trusts

December 4, 2019

You’ve likely heard both of these terms before, but Wills and Trusts are two different devices that are useful in estate planning. They can be used to serve different purposes or be used together to create a more complete and comprehensive estate plan. Let’s take a look at the differences between the two to better understand how to use them.

will and trust in estate planning

Definition

A Will is a document that establishes the beneficiaries of your assets and appoints a personal representative to ensure the carrying out of your wishes after you pass away. A Trust is a legal arrangement where a “trustee”, either an individual or an institution (bank, law firm, etc.), holds the legal title to property for the benefit of another person, referred to as the “beneficiary.” Both items are methods of estate transfers.

Effective Date

While a Will is a document that does not go into effect until after you are deceased, a Trust created during a person’s lifetime (an “inter vivos Trust”) is often effective as soon as it is created. If a Revocable Trust is created, the “grantor” (the person who created the Trust) controls the property in the Trust while they are still living, and the Trust can be revoked.

In certain circumstances, the grantor may wish to create an Irrevocable Trust, which limits what they can do with the property and cannot be undone. A Testamentary Trust is a Trust that is created by a Will, and does not come into effect until after the person dies, and sometimes only upon a specific event—for example, a Testamentary Trust in a Will may provide that if the testator dies before their children reach a certain age, then a Trust is established and the money is held in that Trust for them until that age.

What They Cover

A Will covers all assets (real property, bank accounts, cars, furniture, etc.) that were in your sole name or that you were legally entitled to when you passed away. A Trust only covers property that has been transferred into, or titled in, the name of the Trust. It is not enough to just say in the Trust document that something is in the Trust—you must go through certain legal steps to ensure proper titling

Probate

Assets that pass through a Will are subject to probate, a process in which the court oversees administration of the Will in order to establish and confirm its validity, and ensure that the property gets distributed the way the deceased intended, according to their Will. Assets in a Trust pass to the beneficiaries outside of probate. This can save your heirs substantial time and money.

Additional Differences Between Wills and Trusts

  • A Will becomes a public record after death, while the terms of a Trust remain private.
  • A Will allows you to specify funeral arrangements and name guardians for children—a Will is often used in conjunction with a Trust for these purposes.
  • A Trust can be used to plan for disability or may be able to save your heirs money on taxes.
  • Trusts can have two kinds of beneficiaries: income beneficiaries who receive income, and sometimes principal, from the Trust during their lives, and remainder beneficiaries who receive what is left over after the income beneficiary passes away. This makes it a good tool in a second marriage situation, where a person wishes to provide for their spouse during their lifetime, but have the bulk of their estate eventually go to their children.

Looking for Help with Wills and Trusts in Estate Planning?

DK Rus is a Maryland estate planning lawyer with over 25 years of experience in the industry. She is dedicated to providing her clients with all of the resources necessary to make the best legal and estate planning decisions and to navigate the legal process confidently. If you have additional questions regarding wills and trusts, or are ready to begin estate planning today, contact us to request your free legal consultation and know you are in good hands.

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