You’ve probably heard the terms living will and trust used interchangeably. Although both a will and a living trust are important estate planning documents, they are actually very different. If you are new to the process of planning for your estate, it’s important understand how living trusts and wills are used.
Basic Definitions
This document establishes the distribution of your property when you die. If you have children, the will can provide for their care by naming guardians who will raise them if you die or become incapacitated and are no longer able to do so. A will can be created at any time and amended at any time. It can also be revoked if your wishes change.
With a living trust, you can arrange to provide for your beneficiaries both during your lifetime and after your death. Unlike with a will, however, you cannot name guardians for your children using a living trust.
Deciding Between These Documents
While both a will and a living trust allow you to name beneficiaries for your property, each has specific advantages and potential drawbacks depending on your situation. Some of the key differences between a will and a living trust include:
- Wills must go through the probate process and living trusts are not required to do so. This is the procedure used by the courts to wrap up your estate and can be costly and time-consuming if your will is complex or contested. In this case, a living will may be the best option so you can avoid probate. For simple wills, probate is usually relatively painless, especially when you have the guidance of a knowledgeable probate attorney.
- Living trusts remain private after your death but wills are made public. For this reason, a living trust is essential if you prefer confidentiality.
- Although estate documents are rarely challenged in court, it is much easier to contest a will than it is to contest a living trust.
- In a living trust, you can name a person to make decisions on your behalf regarding the trust if you are no longer able to do so. With a will, you must complete a second document known as durable power of attorney to name a person or company to handle your affairs.
If you need an estate planning lawyer in the Madison area, Horn & Johnsen SC have more than 25 years of estate planning and probate experience. We can help you create a plan that works for your needs and streamline this sometimes complex process. Complete our online form to request an appointment for your consultation.
