A Will and a Living Trust are two (2) separate and unique documents. Consequently, there are several differences between them. The most important difference is how these documents relate to Probate, which is the Court administered process by which the decedent’s assets are collected, their liabilities are liquidated, necessary taxes are paid and property is distributed to heirs.
The main benefit of a Will is that it permits one the freedom to pass assets to whomever they would like, as opposed to having their property pass according to the Laws of Intestacy. These laws dictate how a person’s assets are to be distributed when they die “intestate”, or without a Will. This can result in dispositions (distributions and/or decisions) that the decedent would have preferred to have avoided. In addition, a Will allows one to state any special requests upon their death, such as who is named the Guardian of minor children, etc. Wills have downsides, however: When a Will is filed with the Probate Court, it becomes a public document. In addition, the Probate process is oftentimes quite costly and lengthy, resulting in the distribution of a decedent’s property to their heirs long after death.
The use of a Living Trust has several distinct advantages over a Will, all of which stem from the former’s bypassing of the Probate process. One of the chief advantages of a Living Trust lies in the avoidance of the oftentimes considerable costs associated with Probate (such as Court filing fees and attorney fees). Thus, people seeking to minimize the financial burden of these costs on their heirs should look to a Living Trust as opposed to a Will. In addition, a Trust remains private, so one’s affairs are handled without the necessity of Court oversight and the information does not become accessible public information. Furthermore, property that passes through a Living Trust passes immediately upon the death of the individual who created it; therefore, one’s heirs do not have to wait to receive the property. Finally, the person setting up a Living Trust (called the “Settlor” or “Trustor”) can serve as its Trustee, thereby retaining full control of their assets.