Differences between Living Trust and Will
Contents
Living Trust vs. Will[edit]
A living trust and a last will and testament are legal documents used in estate planning to specify the distribution of an individual's assets after death.[1][2] A will is a document that outlines how assets should be distributed and can also name guardians for minor children.[3][4] A living trust is a legal arrangement where assets are transferred to a trust during a person's lifetime.[5] While both serve to direct the allocation of assets, they differ in several key aspects, including their timing, the probate process, privacy, and management of assets in the event of incapacitation.
Comparison Table[edit]
| Category | Living Trust | Will |
|---|---|---|
| Effective Date | Becomes effective immediately upon being signed and funded.[1] | Only takes effect after the individual's death. |
| Probate | Assets held in the trust avoid the probate process.[5] | Assets distributed through a will must go through the court-supervised probate process.[1] |
| Privacy | The details of the trust remain private as it does not go through probate. | Becomes a public record once it is filed with the probate court. |
| Management of Assets | A successor trustee can manage the assets if the grantor becomes incapacitated, without court intervention. | Has no legal effect if the individual becomes incapacitated and cannot manage their own affairs. |
| Cost | Generally more expensive to set up initially, with costs potentially ranging from several hundred to several thousand dollars. | Typically less expensive to create, with costs ranging from no cost for a handwritten will to several hundred dollars for an attorney-drafted one. |
| Guardianship of Minors | Cannot be used to appoint legal guardians for minor children. | The only legal document that can be used to name guardians for minor children. |
Probate Process[edit]
One of the most significant distinctions between a living trust and a will is the handling of the probate process. Probate is the legal procedure where a court validates a will and oversees the distribution of the deceased's assets.[4] This process can be lengthy and costly. Assets properly transferred into a living trust bypass probate, allowing for a potentially faster and less expensive distribution to beneficiaries.[1] A will, on the other hand, must go through probate, which can lead to delays and additional expenses for the estate.
Privacy Considerations[edit]
Privacy is another key difference. Since a will must be filed with the probate court, it becomes a public document, accessible to anyone. This can expose details of the estate, including the assets and the identities of the beneficiaries, to public scrutiny. In contrast, a living trust is a private document that does not become part of the public record, offering a higher degree of confidentiality for the estate and its beneficiaries.
Asset Management and Incapacity[edit]
A living trust provides for the management of assets not only after death but also in the event the grantor becomes incapacitated and unable to manage their own affairs. The designated successor trustee can step in to manage the trust's assets without needing court authorization. A will offers no such provision, as it only becomes effective upon the individual's death.
While a living trust can manage the distribution of assets, it cannot be used to name a guardian for minor children. A will is the sole legal instrument for appointing guardians for dependents. For this reason, individuals with minor children who opt for a living trust are often advised to also have a "pour-over will" to name guardians and to ensure any assets not included in the trust are transferred into it upon their death.
References[edit]
- ↑ 1.0 1.1 1.2 1.3 "freewill.com". Retrieved January 06, 2026.
- ↑ "legalzoom.com". Retrieved January 06, 2026.
- ↑ "fidelity.com". Retrieved January 06, 2026.
- ↑ 4.0 4.1 "cdcfoundation.org". Retrieved January 06, 2026.
- ↑ 5.0 5.1 "protective.com". Retrieved January 06, 2026.
