ASK HEIDI: What is the difference between Last Will & Testament and a Trust?

Short Answer: Property left through a Living Trust does not pass through probate. Property left through a Will does go through probate. Probate is the court system designed to wrap up a person’s affairs after their death. Probate can take a long time, be very expensive, and for most estates, can be avoided with a little planning.

Why it’s Important: A Will and a Trust are two completely different ways to handle your estate. Knowing the difference between the two can help you make the best choice for you and your family.

Pros for using a Trust
If avoiding probate court is something that you want to you then a Living Trust may be the estate planning avenue for your assets. If a Living Trust is properly written and funded, you can:

  • Avoid probate on your assets
  • Plan for the possibility of your own incapacity
  • Control what happens to your property after you are gone
  • Use it for any size estate; and
  • Prevent your financial affairs from becoming a matter of public record

There are many positive reasons to establish a Trust but do not overlook the fact that it will involve more upfront effort and expense.

Pros to using a Will
A Will is a written document that will go into effect once you die. This document indicates how your property will be distributed at the time of your death. It is revocable and subject to changes at any time during your lifetime. A Will does not have to be “funded” as it acts as an instruction not a “vessel” so you can avoid some upfront costs, but in most cases it will not help your heirs avoid probate.

The commonality between using a Will or a Trust is that you should consult with an attorney specializing in this field in the state in where you live to help you make the appropriate choice for your Estate Planning based on your present circumstances, after-death desires, and the size and composition of your assets.

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