Should I have a Revocable Living Trust or a Will?
“I already have a Will – why should I now get a Revocable Living Trust?” This is an excellent question which many of my clients ask when they first come to see me. The first thing I explain to them is there are some people for whom a Revocable Living Trust would be the wrong choice. But for most situations, a Revocable Living Trust is undeniably the better solution.
A Will has two major deficiencies: (1) it does not control anything should you become mentally incompetent and (2) everything under the Will must go through Probate.
A Revocable Living Trust, on the other hand, specifies who will control the assets within it and how the assets are to be handled. Guidelines are defined for the use of the assets during any period of time you may be mentally incompetent. Also, upon your death, any assets in the Trust totally avoid Probate. This means they are not tied up in court for months, and they are not subject to public scrutiny by being part of the public record at the Probate Court.
Some ideas to consider:
| Items of Importance to You | If you have a Will |
If you have a Revocable Living Trust |
Disability Planning |
Non-existent under just the Will. There will be a “Living Probate” for the disabled person for guardianship and conservatorship. You can use a power of attorney for Disability Planning |
No court intervention. Disability is determined by whom you wish. The assets are handled privately. |
Privacy |
No privacy as all documents and proceedings are public record after death |
Totally private because it does not become a public record |
Disposition of Assets |
Can be used to dispose of assets outright or through a trust. This goes through the Probate process and generally takes longer and costs more. |
Can be used to dispose of assets outright or through a trust. This avoids Probate, so disposition of assets is usually much easier and faster. |
Effort Required |
Very little now because you will usually just sign the Will. A great deal of work remains for your loved ones after death. |
You will spend more time and effort now planning your total estate and getting your assets together. However, upon your death very little effort will be required of anyone. |
Cost Now |
Usually small to moderate |
Moderate |
Costs to Change |
Usually small |
Usually small |
Cost upon death |
Can be small but generally very high due to Probate procedures |
Usually minimal if the trust has been properly maintained |