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Wills vs. Trusts: Understanding the Differences and Benefits of Both

January 21

Which Is Better? A Will, Living Trust, or Combination of Both?

Written by Thomas Upchurch

Wills and living trusts are two kinds of estate planning tools that can help ensure your assets are protected and passed along in accordance with your wishes; however, given the advantages and disadvantages of each, it can be difficult to determine which estate planning tool is best for you. Fortunately, with the help of an experienced Florida estate planning attorney, determining how to plan for your future doesn’t have to be overwhelming. At Upchurch Law, our experienced estate litigation and will contest attorneys will help you craft an estate plan that takes the unique needs of you and your loved ones into account. In this article, we tackle the following question: “Living trust vs. will: which is better?

Living Trust vs. Will: The Benefits of a Will

Before determining whether a will, a living trust, or a combination of both is best for you, it is necessary to first understand the benefits of each of these types of estate planning tools. A will, also known as a last will and testament, is one of the most common estate planning documents. A will expresses a person’s final wishes regarding several issues. With a will, you can accomplish many things, including:

  • Ensure that your assets are distributed as you wish.
  • Appoint and outline the powers of a personal representative.
  • Appoint a guardian for your minor children.
  • Specify your funeral wishes.
  • Expedite the legal process.
  • Reduce stress for your loved ones.

Living Trust vs. Will: The Benefits of a Living Trust

A living trust is a document that is used to manage a person’s assets during his or her lifetime and distribute the remaining assets after his or her death. The person who creates a living trust is called a “grantor” or “settlor,” and the person who is responsible for the management of the trust is called the “trustee.” A grantor may serve as trustee during his or her lifetime, or he or she may appoint another person or entity to serve as trustee. A grantor may modify or terminate a trust during his or her lifetime, as long as he or she is of sound mind when doing so. The benefits of a living trust include:

  • It is effective during the grantor’s lifetime.
  • The trust can be modified during the grantor’s lifetime.
  • A living trust avoids probate.
  • A living trust may save money.
  • A living trust protects the privacy of the grantor and beneficiaries.

Determining What Is Best for You

When it comes to estate planning, the best fit for you depends on your personal circumstances, situation, goals, and needs. Therefore, without first examining your unique situation, it is impossible to definitively state which estate planning tool is the best choice for you. As discussed above, wills and living trusts each have their benefits, and the best way to figure out which one is right for you is to consult with an experienced Florida estate planning attorney; however, when making a preliminary determination of which option may be the best one for you, there are a few factors you should consider, including:

  • The availability of informal probate: Most states have a form of expedited or simplified probate available to estates under a certain dollar threshold. Florida offers a type of informal probate called summary administration. Summary administration is a simplified process available to estates in Florida that meet certain statutory requirements. Specifically, summary probate is available when an individual has been dead for over two years or the total value of his or her estate is $75,000 or less. If you believe that your estate will be eligible for summary probate, a will may be all you need to adequately address the needs of you and your family.
  • Whether you will actively manage your estate plan: If you plan on actively managing your estate plan (or having someone else do it for you), then a living trust may be a suitable solution for you; however, if you don’t believe you’ll have the time or resources to actively manage your plan, you may want to opt for a will.
  • Whether the additional cost of a living trust is worth the benefits: A living trust and a will accomplish similar objectives; however, as discussed above, a trust offers some benefits that a will can’t, such as the avoidance of probate. At the same time, these extra advantages come with a price. Therefore, when determining whether a living trust or a will is the best choice for you, you must first decide whether the additional advantages of a living trust are worth the upfront costs.

The Best of Both Worlds

Rather than deciding which option is better, many people opt to include both a will and living trust in their estate plans. By choosing both options, you receive all the benefits of both types of estate planning tools. A trust provides for the management and distribution of your assets during your life and after death. A will, on the other hand, allows you to do things like appoint an executor for your estate, name guardians for your minor children, and declare your last wishes. Therefore, in many cases, a comprehensive estate plan that includes both a will and a trust is the best option.

Contact an Expert Estate Planning Attorney

If you need help with the estate planning process in Florida, Upchurch Law is here for you. At Upchurch Law, knowledgeable and experienced Florida estate planning lawyer Thomas Upchurch is here to assist you with all of your Florida estate planning needs, including identifying the most suitable estate planning tools for your unique situation. Upchurch Law services the Central Florida and North Florida areas, including Orlando, Deland, Daytona Beach, Jacksonville, Port Orange, Tampa, St. Petersburg, Ormond Beach, Palm Coast, Saint Augustine, and Titusville. So, if you are ready to begin planning for your future, please contact us today to schedule a free initial consultation with our experienced estate planning attorney.

Frequently Asked Questions 

What Is a Will?

A will, also known as a last will and testament, is an estate planning document that is used to detail what will happen to your property after you die. You can also use a will to name a guardian for your minor children, appoint a personal representative, forgive debts, and designate how your taxes will be paid. After your passing, the personal representative named in your will pays any outstanding debts or taxes and determines how to pass along your assets based on the terms of your will. Wills in Florida must go through probate, which is a court-supervised process for identifying and gathering the assets of a deceased person, paying his or her debts, and distributing his or her assets to beneficiaries.

What Is a Living Trust?

Similar to a will, a living trust is a document you can use to pass along your assets to your beneficiaries. Wills and trusts have some key distinctions, however. One such distinction is that a living trust appoints a trustee to manage and distribute trust assets after your death. Another key difference between a living trust and a will is that a living trust doesn’t go through probate, which is considered a significant advantage. In fact, many people create living trusts specifically to avoid probate, as the probate process is notorious for being expensive and slow. That being said, living trusts also tend to be more complicated and expensive to set up and maintain than wills, so it is recommended that you contact an attorney to determine the best option for you.

Do I Still Need a Will if I Have a Living Trust?

If you create a living trust, you may think that you don’t need to also create a will. After all, as noted above, a living trust achieves several of the same objectives as a will, but even if you include a living trust in your Florida estate plan, you should consider drafting a will as well. The first reason that you may want to consider both estate planning tools, is that a living trust typically doesn’t include all of your property; rather, a living trust only covers property you have transferred in writing to the trust. It is very rare for a person to transfer all of his or her property to a trust; however, even if you attempt to transfer everything into a living trust, there’s always the chance that you’ll acquire property shortly before your death, leaving it unaccounted for.

The second reason that people who have a living trust in place also execute a will is that a will does certain things that a trust can’t do. For example, if you have minor children and want to name a guardian for them—a person who will take care of them if you pass away before they reach adulthood—you must do so with a will. In addition, you can’t use a living trust to forgive debts owed to you, but a will allows you to do so.