You’ve probably heard the terms “will” and “trust” thrown around before– they’re both documents that lay out instructions on how to manage a person’s affairs after their death.
Wills and trusts are important steps in the estate planning process, because they include instructions on how to distribute your assets and property. But they can also include some non-financial provisions, including a person’s preferences for their funeral or guardianship of their minor children.
So what exactly is the difference between a will and a trust? And which one should you use to plan your estate in preparation for the unfortunate event of your death?
Our attorneys at Generation Law Group have been helping business owners throughout Idaho and around the country draft their wills and trusts for decades, and we’re here to walk you through it.
The difference between a will and a trust
Wills and trusts have some things in common, but they are fundamentally different types of documents in the Idaho legal system.
A will is any written document that is signed and witnessed, expressing a deceased person’s wishes. A trust, on the other hand, is a legal document used primarily for purposes of estate planning.
A will only becomes active after your death, while a trust becomes active the day you sign it, and can even distribute property or assets while you’re still alive.
Here’s a brief breakdown on the differences between a will and a trust.
- Only active after death
- Subject to probate proceedings
- Can be contested by family
- Allow for naming guardianship of minor children
- Allow for naming a personal representative of your estate
- Easier to create than trusts
- Active the day you create it
- Not subject to probate proceedings
- Less likely to be contested by family
- Can list the distribution of assets before death
- Allow for management of assets in the case of incapacitation
- Requires more time and money to create
Both wills and trusts can be altered at any time while you’re still alive. But another big difference is that trusts can contain instructions on how to manage your assets while you’re still alive, but incapacitated.
The probate process
One of the most significant differences between wills and trusts is their relationship to the probate process. The term “probate” literally means “proving,” and probate court is an area of law where a deceased person’s will must be authenticated in court after their death.
Probate court can often be a lengthy process, and in Idaho, it can be somewhat expensive. Moreover, the entire process is completely public. In cases where the deceased person’s family might be contesting the will, this can be an ugly and public process.
Trusts, on the other hand, do not need to be assessed in probate court. This means that trusts may be cheaper and simpler in the long run, even if they are more complicated to create. It also guarantees the deceased person and their family a bit more privacy in managing their affairs.
So which is better: a will or a trust?
Wills and trusts both have pros and cons, and which document is more useful to you will depend on your specific circumstances. The best way to decide between a will and a trust to manage your estate is to talk it over with an attorney experienced in estate planning and trust administration.
One important upside to wills is that they provide you with more opportunity to plan the non-financial aspects, such as the guardianship of your minor children, and your funeral arrangements. However, many people will sign both a will and a trust, to make sure that they have these issues covered.
At Generation Law Group, we often find ourselves recommending trusts over wills, for a number of reasons.
Here are three of the most common reasons we recommend people consider trusts:
- Trusts allow you to plan for the management of your estate if you are incapacitated but still alive
- Trusts grant the deceased person and their family more privacy
- With trusts, there is no need to go to probate court
Hire an estate planning attorney in Idaho today
Whatever the details of your situation, there is an estate plan that is right for you. It might include a will, a living trust, or some other kind of legal document, but the bottom line is that Generation Law Group can help you figure it out. Contact us today to schedule a consultation.