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Wills and Trusts: Estate Planning Tools

Fountain pen on top of a last will and testament

You and your partner have many financial and legal tools available for estate planning. You’ve probably heard of both wills and trusts, but it can be easy to confuse the two. What are they, what are the differences between them, and which one is better? This quick guide can help you understand them better and make wise financial decisions for you and your family.

What Does a Will Do?

Simply put, a will is a legal document that lays out your final wishes about your property. You’ll name your estate’s executor in your will, but Nolo mentions several other things that a will can do:

  • Appoint guardians for your children and their property
  • Leave instructions for debt and tax payments
  • Name guardians and allocate resources for your pets’ care
  • Provide a backup to your living trust

These are just some basics. You can name multiple executors or set up trusts for your children, for example. Simple wills can be written with trustworthy software programs, as personal finance expert Geoff Williams mentions in a U.S. News piece. But if your financial situation is complex or you have lots of assets, consider hiring an estate attorney.

What Shouldn’t I Do in My Will?

You’ve probably heard of both real-life and fictional drama caused by wills. Christina Crawford’s 1981 memoir “Mommie Dearest” describes her adoptive mother, Joan, cutting her and her brother Christopher out of her will “for reasons which are well known to them.” Wills can also be contested by surviving family members. Yet other problems result from badly constructed wills: no signature, no witnesses, no legal capacity to write it, and strange provisions. To ensure that courts don’t throw yours out, avoid a few other faux pas:

  • Placing conditions on gifts
  • Including final burial arrangements
  • Adding healthcare directives
  • Leaving property to your pets

In other words, don’t scrawl out a will and leave it in a dresser drawer. Don’t leave $1 million to your cat. And don’t demand that your kids wear chartreuse for an entire year to get their inheritance.

What Is a Living Trust?

Both wills and trusts can transfer property to your heirs. So, what’s the key difference between the two? Investopedia explains that a trust creates “a fiduciary relationship in which you give another party authority to handle assets” for another party’s benefit – namely your heirs. You’ll commonly hear about two kinds, testamentary and revocable living trusts. Testamentary trusts are established by wills, with trustees overseeing and disseminating assets to beneficiaries. A revocable living trust is created by a special trust document. They’re revocable because you can dissolve them at any time, and living because they can be updated with assets until your death.

Do Living Trusts Have Benefits and Drawbacks?

Wills go through what’s known as probate. The Balance describes it as a court-supervised process of authenticating a will, valuing assets, paying remaining bills and taxes, and distributing leftover assets to heirs. Revocable living trusts do not go through probate. Since they’re privately created and maintained, they won’t appear in public records. And unlike wills, trusts typically can’t be challenged in court. On the other hand, they’re also more expensive to create and maintain. Another Investopedia piece mentions planning and administrative expenses, plus the continual need for recordkeeping and adjustments. Also, assets placed in your trust are still subject to taxation, creditors, and legal action.

So, which is better for estate planning: wills or living trusts? There’s no hard and fast answer to that question. The tools you choose should depend on your financial situation and goals. The key objective is ensuring that your assets transfer according to your desires. Making sure your partner and family are cared for after you die is another critical goal. Ultimately, you should do your homework and understand your needs before creating either a will or living trust.

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