What is the difference between a will and a living trust, and which one should I choose for my estate plan?

As a lawyer, I can explain the key differences between a will and a living trust, which can help you decide which one is suitable for your estate plan.

A will is a legal document that outlines how your assets will be distributed after your death. It can also include your preferences for your funeral and burial arrangements, and designate guardians for your minor children. A will only takes effect upon your death, and it must go through probate, which is a court-supervised process that validates your will, pays your debts and taxes, and distributes your assets to your beneficiaries according to the terms of the will. There are probate fees, attorney fees, and court costs associated with probating a will, which can be time-consuming and expensive. Additionally, a will is a public document, which means that anyone can access it after your death and learn about your assets and beneficiaries.

On the other hand, a living trust is a legal document that sets up a trust during your lifetime, which can hold your assets for the benefit of yourself and/or your beneficiaries. You can serve as the trustee of the living trust, and you can change, amend, or revoke the trust at any time. A living trust can also specify your preferences for your healthcare and financial decision-making in case of your incapacity. If you become incapacitated or die, the assets held in the living trust can be distributed to your beneficiaries without going through probate. This is because the living trust technically owns the assets, not you as an individual. Since a living trust is a private document, it offers more privacy and confidentiality than a will.

In general, a living trust is preferable to a will if you have substantial assets, own property in multiple states, or want to avoid probate and its associated costs and delays. A living trust can also offer flexibility and control over the distribution of your assets, especially if you have complex family dynamics or charitable goals. However, a living trust can be more complicated to set up and maintain than a will, and it generally requires the assistance of an attorney. Furthermore, a living trust does not exempt your assets from estate taxes or creditor claims, so you may still need to plan for those in your estate plan.

Ultimately, the choice between a will and a living trust depends on your personal and financial circumstances, and should be made after consulting with an experienced estate planning attorney.