Which of the two most common estate plans is best for you, a revocable living trust or a will? In the following article covering Wills vs Revocable Living Trusts, we will show how each plan is alike, and then provide examples of the differences between the two different estate planning vehicles.
Benefits of Both Wills and Living Trusts
The first point to be made is that completing an estate plan, through either a will or a living trust, is a far superior option for you, your assets, and your loved ones.
Let’s say for example you made the unfortunate error of forgetting to draft your will/living trust upon the reading of this article, and you die without a written plan in place. This is called dying intestate, meaning that the your assets and liabilities will be resolved in accordance with your state’s probate law.
Let’s flesh out the example to see why dying intestate is undesirable. Each state has statutes that determine a deceased person’s heirs if there is no estate plan.
Perhaps the deceased lived in a state where the assets of the husband revert entirely to his spouse, and upon discovering this (what he mistakenly sees as fortunate) coincidence, the deceased decided to skip the time and money needed for estate planning and die intestate.
If his wife were to become incapacitated before or soon after the fact, a probate court would then appoint someone of the judge’s choosing to care for the assets of the incapacitated wife and/or any minor children without input of either parent.
And nor is just money at stake. If there are minor children in the scenario we are describing, without a will, the parents would have no influence over the choice of appointed guardians by a court.
This much uncertainty is unnecessary, as I am sure you agree. Now let’s parse these estate plans and determine which is best.
Where There’s a Way, There’s a Will
In law, like most everything else in life, you get what you pay for. In a moment we will explain the benefits—and there are many—of the more expensive estate plan option, the revocable living trust. But it is always easier to start with the basics.
At the very least, you need a Will. The primary advantage of the Last Will and Testament is its simplicity and low cost. In fact, in more than half the states now, a citizen has the choice of the easiest option when it comes to drafting a Will, called the holographic Will.
The requirements of a holographic Will are simple; it just needs to be written in your own hand. You name the executor and beneficiaries. You can also name specific property or just say something as simple as, “All I have to my wife, Jane”.
Meeting the requirements of a holographic Will can get more complicated if there is a question of fact as to if you wrote the document while you had the legal capacity to do so, but without an objection, a holographic Will be upheld in New Jersey, Texas, Nevada, Arizona, and Virginia (among the other 20 jurisdictions).
Perhaps the most extreme common law example of an upheld holographic will comes from our friends up north. In 1948 Saskatchewan, a farmer was crushed by his tractor, and unbeknownst to his family, he scrawled what was upheld to be a holographic will by a Canadian court: “In case I die in this mess I leave all to the wife. Cecil Geo. Harris.” Yes, it can be that easy.
In many states, executing a simple holographic Will is simple; although many people wait until there is an emergency to take advantage of the holographic will provision. (By no means should you feel obligated to follow suit).
But if this is so simple and easy, why are so many people spending so much time, money and effort on estate planning?
The short answer is to avoid probate. A Will creates a testamentary trust upon the death of the testator. However, just because a testamentary trust is created, it does not avoid probate. And probate has a bad reputation for a reason.
What is Probate?
Probate is a public court procedure that an estate must go through if the deceased dies intestate or with a Will, (whether holographic or professionally drafted[1]). Again, we get what we pay for.
The Will was cheap sure, but that bill comes due during the probate process. In the best cases, it takes six to nine months for a case to clear the probate court; at worst, it can take up to three years with the proceedings whittling away up to 10% of the estate’s value.
Probate proceedings get costlier and more time consuming if there are disputes between beneficiaries or creditors as the meaning of the document[2].
Part of the delay in the allocation of property to the beneficiaries is a prescribed period for creditors to make claims on the estate after the public is given notice of the probate proceeding through publication in a periodical.
Although the delay is irksome, an unheralded benefit of the Will relative to the living trust is that there is a fixed, finite amount of time that a creditor may make a claim under court supervision.
You see, once the period expires, creditor claims against the estate are no longer ripe. Although living trusts have many benefits, creditors do not have a limited period to sue for unpaid debts.
One more note on the probate of wills.
Most states offer an expedited probate procedure for certain estates of up to a certain value that varies by jurisdiction, (California for example is $150,000 and is much higher than most). If there is not real property to be transferred, and the estate is worth $50,000 to $100,000, it is certainly worth your time to see if an expedited probate is an option.
Revocable Living Trusts: A “Must Have” for Estate Planning
Simply defined, a trust is a document that a grantor, (owner of the assets), assigns rights to beneficiaries; the grantor also assigns a trustee to act as his or her representative to effectuate the intent of the trust, i.e. to administer the trust.
There are different types of trusts, such as revocable trusts vs irrevocable trusts. A revocable trust allows the trustor to change the terms of the trust and maintain control, i.e. “Living”. An irrevocable trust is more permanent, and makes it very difficult for the trustor to maintain control once it is set in place. That is why the term irrevocable living trust is a misnomer.
The simple truth is that a revocable living trust will cost you more up front than a Will, but for many folks the cost is well worth it.
An Inter-Vivos Trust (the revocable living trust’s Latin name) sounds complicated and intimidating. It’s not.
Any person with simple assets and desires that is competent enough to draft a Will could also draft a revocable living trust with the help of a qualified estate planning attorney, rather than some DIY estate plan.
Warning: to take full advantage of the benefits of a revocable living trust, the documentation needs to be completed in a specific way[3] to be legally valid. Given that you have worked your entire life to create wealth to pass on to your heirs, it is likely worth consulting legal counsel to ensure your estate plan is completed correctly.
Let’s get to the advantages of the living trust.
Benefits of a Living Trust vs a Will
The first and most obvious benefit of a trust vs a will is the immediacy and privacy of a trust.
Immediacy
With a valid living trust in place, upon the death of the grantor, the transference in ownership of assets to prescribed beneficiaries takes place as soon as the trustee finds it reasonable to do so.
What that means is that there is no requirement for a judge to approve of any part of the transfer. The trustor or creator of the living trust names a successor trustee. Upon the death of the trustor, the successor trustee becomes the trustee, with all the responsibilities and duties that entails.
Privacy
Even better, no one will necessarily ever find out about the terms of the document, as living trusts are entirely private affairs. For many folks, the privacy benefit alone of a living trust vs Will is worth the price.
Harder to Challenge
Additionally, it is much more difficult to challenge a living trust in court compared to a Will. We often hear of that common tale where an elderly parent makes a new younger friend and alters his or her Will late in life, to the chagrin of the children. This can lead a competency or duress challenge, among others.
Amendments
With a living trust, the grantor will engage with it often over the years to add or remove property or make trust amendments, as two examples. This prolonged interaction with the living trust is often sufficient evidence that the trust was effectuated while the grantor was competent, meeting the minimum requirements set by statute.
Avoid Conservatorship
The last benefit of revocable living trusts to bring to your attention is the ability to avoid conservatorship—when a court assigns someone the legal rights to make decisions for a ward that is unable to do so for himself.
(It would be beneficial to also have a durable power of attorney so your trustee can also control other assets if you are incapacitated, such as paying your bills).
If, God forbid, something was to happen to you, and you could no longer make your own decisions, without a living trust, your family would need to petition a court for the right to make your medical and financial decisions.
This is an unnecessary burden in an already tough situation. The living trust permits a person to dictate the terms of his or her incompetency, even while the grantor is alive.
Pour-Over Will
Also, it’s not an either/or proposition when it comes to trusts vs wills. Any estate planning attorney worth their salt will include a pour-over will to complement the revocable living trust.
The pour-over Will provision covers any asset that may have been mistakenly omitted from the living trust[4], plus it permits the grantor to complete tasks reserved only for Wills, such as assigning guardianships for young children and dictating final wishes.
Living Trust Administration vs Probate Administration
There are many advantages to a trust administration in contrast to probate. As mentioned above, one of the primary benefits is that a trust administration is private. The named trustee of the trust has the authority to distribute all assets properly titled in the name of the trust. In contrast, probate is public record and not private.
In addition, trust administration can be done without court involvement. However, a probate must follow the probate court process, often requiring the estate to gain court approval for various actions, such as the sale of real estate.
Trust Administration vs Probate of a Will
A trust administration is typically much less expensive than a probate. For example, the trustee of the trust does not necessarily receive monetary compensation for administering the trust.
A reasonable trustee fee is typically around 1% of the total estate value.
Additionally, if you seek attorney help, a lawyer may charge on an hourly basis or for a set fee, such as 1% of the estate’s total value.
Contrast trust administration fees and costs with probate.
Depending on the state the probate is done in, you can expect probate to cost upwards of 5% of the total estate value when taking into account attorney fees and administrator fees, making probate typically much more expensive than trust administration.
In the end, the best vehicle for estate planning for you will be based on your specific situation.
Footnotes
[1] Each state has specific requirements of what makes a valid will. All non-holographic wills need to be drafted with care.
[2] You would be shocked to see how seemingly clear language can be parsed in ambiguity by attorneys at law.
[3] For example, property needs to be retitled.
[4] Or not transferred into the trust properly.
