401-307-5556Wills and trusts the two most common tools used in estate planning to ensure your assets are distributed according to your wishes. While both serve the fundamental purpose of passing on wealth and protecting your loved ones, these documents function in different ways and offer distinct advantages. Understanding the key differences—such as probate avoidance, privacy, control, and flexibility—can help you determine which option best suits your needs. Both a will and a trust are essential components of a well crafted estate plan. So, let’s break down wills and trusts side by side to help you make an informed decision about your estate plan.
Wills
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Trusts
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| Subject to probate court approval A common misconception that creating a will avoids probate. This is false. If there are assets in your estate at the time of your death, whether you have a will or not, your estate must go through the probate process. |
Avoids probate if set up correctly Assets transferred into your trust during your lifetime are not subject to the probate process. |
| Only take effect after death You can change your will or make a new will anytime during your life, but only as long as you are competent to do so. |
Takes effect during the creator’s lifetime A living trust takes effect during your lifetime, allowing you to manage and control the assets while you are alive. Unlike a will, which only becomes effective after death, a living trust enables seamless management, protection, and eventual distribution of assets without the need for probate. |
| Names the person who will be in charge of your estate when you die Your “Personal Representative” (formerly known as an Executor or Executrix) is the person who will be responsible for the proper administration of your estate. |
Avoids guardianship or conservatorship proceedings if you become incapacitated Assets in a trust are managed by a trustee. As long as you are living and able to, you will continue to manage your assets. But if you ever become incapacitated, the person you name as a successor trustee will step up and manage the assets on your behalf, so there is no need to rely on a power of attorney or go through living probate. |
| Provides for distribution of your assets to your chosen beneficiaries A will specifies which assets are to be distributed to whom. It is your Personal Representative’s duty to ensure these distributions are made in accordance with your will. |
Provides for distribution of your assets to your chosen beneficiaries Trusts are very flexible when it comes to making distributions to your beneficiaries, whether you have one beneficiary or 100 beneficiaries. A trust will allow you to have complete control over who receives your assets and how they receive them, even after you are gone. |
| Can be used to exclude persons from inheriting your assets You may intentionally omit heirs from your will. However, State laws often provide protections allowing surviving spouses to receive a share of your estate, even if they are intentionally omitted. |
Can be used to exclude persons from inheriting your assets Like a will, you can intentionally omit any heirs at law as beneficiary of your trust. Unlike a will, that heir is not entitled to any information. Only those beneficiaries who are receiving distributions under the trust are entitled to a copy of the document |
| Subject to challenges in probate court Beneficiaries and omitted heirs could challenge your will if they disagree with the provisions you have made. Will contests are costly and time consuming. |
Cannot be challenged in probate court Legal issues pertaining to trusts must be brought before the Superior Court, as probate courts do not have jurisdiction over trust issues |
| Does not provide any protection for assets A will cannot protect your assets from creditors or nursing home costs. |
Certain types of trusts can protect your assets Only irrevocable trusts will protect your assets from being depleted to pay your creditors or for nursing home costs, if they are set up correctly |
| Typically less expensive to prepare than a living trust (roughly half the cost) Wills are simpler documents to prepare and require less work for your attorney. However, this should be weighed against the potential costs of probating your estate and/or living probate proceedings such as guardianship or conservatorship. |
Typically costs more to create than a will (roughly twice to price) Trusts are complicated legal instruments and involve far more than just drafting your documents. However, this cost should be weighed against potential probate-related costs. |
Whether a will or a trust will work best for you depends on your individual circumstances, goals, and the level of control you want over your estate. Wills offer a straightforward way to distribute assets, are usually less expensive, but require probate. Trusts on the other hand provide greater flexibility, privacy and avoid probate court proceedings, but involve more upfront effort and cost.
