Estate planning is essential to wealth management and asset preservation, particularly for individuals with a higher net worth.
Two key instruments often employed in estate planning are the revocable living trust and the last will and testament. While both tools serve the same primary function—to distribute assets upon the grantor’s death—they are different in both structure and utility. This article is an overview of these differences and sheds light on why a trust often offers distinct advantages over a will, especially for those with significant wealth.
Trust: The Basics
A trust is a legal entity created to hold the ownership of an individual’s assets. A trust can be revocable or irrevocable depending on its intent and terms. A common question is, should I use a revocable or irrevocable trust?
In the case of a revocable trust, the individual creating the trust (the grantor) typically serves as the initial trustee and beneficiary during their lifetime. This means the grantor has complete control over the assets within the trust. You retain control and ownership of the assets placed in the trust, acting as both the trustee and the beneficiary.
Upon your (the grantor’s) incapacity or death, a successor trustee takes over and manages or distributes the trust assets in accordance with the trust document’s specific terms.
Last Will and Testament: The Basics
A last will and testament is a legal document that outlines how an individual wishes their assets to be distributed upon death. Learn about the different types of wills here.
Unlike a revocable living trust, a will does not create a separate legal entity to hold assets. A will also requires probate, a court-supervised process to authenticate the will and distribute the assets, which can be time-consuming and costly.
Key Differences between Wills and Trusts
What’s the difference between a will and a trust? A will is a legal document that outlines your wishes regarding the distribution of your assets and the appointment of guardians for any minor children upon your death.
A trust is a legal entity created to hold and manage assets both during your lifetime and after your death. A will only becomes effective after your passing and must go through the probate process. An executor is appointed to navigate probate administration overseen by the probate court.
A trust is private and appoints a trustee of your trust who will manage your estate or distribute your assets to named beneficiaries upon your incapacitation or death.
Control During Lifetime
In a will, there is no immediate control or management of assets. A will only becomes effective after your death.
In a trust document, assets are owned by the trust and are immediately effective while you are still alive. A trust allows you to appoint a trustee to act if you are disabled or incapacitated and typically retains control over the assets during the grantor’s lifetime.
Probate
Assets held in a trust are not subject to probate, whereas assets to be distributed under a will must go through the probate process.
Probate is a process. It can be expensive, part of the public record, and take considerable time. Given the choice, most families prefer to avoid probate.
Privacy
A trust is a private document whose terms and assets remain confidential from the public and even family and heirs. However, a will becomes a public document once it is submitted for probate. This might not be ideal for an individual concerned about protecting the privacy of loved ones.
Tax Planning
While both a will and trust can be crafted to include tax-saving strategies, a trust is often more flexible and can be easily amended to adjust to tax law changes, offering more avenues for sophisticated tax planning.
A trust can often be crafted to take advantage of lifetime gift tax planning strategies and to avoid estate tax issues at death.
Incapacity Planning
A trust can include provisions that address incapacity during the grantor’s lifetime, whereas a will only takes effect upon death.
By using a trust, you can name a trustee to manage trust assets upon your incapacity. Thus, a trust can avoid the need for a court-appointed conservatorship if the grantor becomes incapacitated.
Benefits of a Revocable Living Trust
- Avoidance of Probate: One of the most significant benefits, especially for high-net-worth individuals with assets in multiple jurisdictions, is that a trust does not go through probate. The cost of probate can be high and create a burden on family and heirs.
- Privacy: Keeps personal and financial affairs confidential. The grantor creates and can keep the trust private from the public. A grantor designates a trustee and settlor who also maintain the trust, even after death.
- Flexibility: Easy to modify during the grantor’s lifetime. A living trust provides the flexibility for a grantor to manage, add, or even revoke a trust during their lifetime. Typically, a trust becomes irrevocable upon your death.
- Incapacity Planning: Allows for a smooth transition of asset management without court intervention in cases of incapacity. One advantage is that a trust allows you to name a trustee who can carry on with asset management even during times of incapacity.
- Tax Planning: Can be structured in a way that optimizes income, estate, and gift tax strategies. An estate planning attorney can design a trust to minimize tax liability and maximize tax advantages.
Conclusion: The Importance of an Estate Plan with a Trust
For most families and individuals, an estate plan is not merely advisable but essential for asset protection, tax optimization, and wealth succession. Setting up a living trust can serve as the cornerstone of a robust estate plan. It offers control, privacy, and flexibility that a will often cannot provide.
While this article offers an overview, estate planning is complex and should be tailored to individual needs and circumstances. It’s crucial to consult with an experienced estate planning attorney like the team at Barbara M. Pizzolato, P.A. to develop a strategy that best serves the needs of you and your family. Contact us here or attend an estate planning event to get started today.
