Wills vs Trusts: Which is Better?

 Posted on January 12, 2024 in Estate Planning

The short answer to which is better, a will or trust, is that it depends entirely on what it is you need it for. A better way to answer this question would be to dive into what a will and a trust are and what makes them different from one another. You should also keep in mind that you can have both. Whatever your estate planning needs are, an attorney can go over the document with you or help draft it to ensure your wishes are enforceable.

A Last Will and Testament

A will takes effect only once you pass away. A will is a document that allows you to declare who will receive your possessions once that occurs. In California, a will must be signed in front of two witnesses, both of whom must verify that during the signing, you were of sound mind and body. In other words, they must certify that you did not sign the will through coercion or under duress.

Dying without a will in place allows the court to distribute your assets as the state sees fit. However, with a will in place, the probate court will follow your wishes outlined in the will. Your assets can then be placed in the care of those you choose, such as your children, and your beneficiaries can typically avoid a lengthy probate process that tends to be expensive. Unfortunately, probate is unavoidable when dealing with a will and is more vulnerable to misinterpretation, unlike a trust.

Your Trust Options Are Numerous

Living trusts allow you to transfer assets easily to those you choose as beneficiaries. Unlike a will, a living trust goes into effect while you are alive. You can continue to add assets to your trust but beneficiaries will be unable to access them until you pass on.

Revocable trusts and irrevocable trusts are the two main types of trusts, and they differ in that one is modifiable whereas the other is set in stone. A revocable trust can have the terms changed and can also be terminated if you so choose. An irrevocable trust must always remain as it is originally written. 

Other trusts available to Californians include:

• Family trusts

• Dynasty trusts

• Qualified personal residence trusts (QPRT)

• Qualified terminable interest property trusts (QTIP)

• Irrevocable life insurance trusts

The Differences Between Wills and Trusts

Unlike wills, trusts are exempt from probate, which keeps them out of the public eye. Your wishes, when written in a will, are still subject to the probate court’s judgment. The time it takes for your assets to be given to your beneficiaries is under the court’s control. Wills can be contested more easily than trusts, though trusts are not immune to it.

When your main reason for either document is to avoid probate, keep things private, and retain control and flexibility, then a trust is the smart move. For those requiring someone to look after their minor children, or a small estate at a lower cost, then a will is the preferred choice. However, it may be best to have both documents as they each serve a distinct purpose.

Contact a Los Angeles County, CA Estate Planning Attorney

The Law Office of David Schechet can provide guidance and advice for estate planning, whether it involves a will, trust, or power of attorney. David is a Los Angeles, CA estate planning lawyer with over 35 years of experience. For a free consultation with help drafting a will or trust, contact the office at 800-282-4731 today.