What is the difference between a will and a trust?

As a lawyer, I can explain the difference between a will and a trust. A will is a legal document that outlines a person's desires and instructions for how their assets and property should be distributed after their death. It includes the appointment of an executor, who is responsible for carrying out the wishes of the deceased, paying any debts and taxes owed, and distributing assets according to the instructions in the Will.

On the other hand, a trust is a legal agreement between the person who creates the trust (the Grantor) and a third party (the Trustee) who manages the assets in the trust on behalf of the beneficiaries. A trust can be created during a person's lifetime or established in their will to take effect after their death. A trust can hold assets, such as property, investments, and cash, that are managed and distributed by the trustee according to the terms of the trust. Trusts can be revocable, meaning the Grantor can change the terms or revoke the trust during their lifetime, or irrevocable, meaning the Grantor cannot change the terms or revoke the trust once it has been created.

One of the main differences between a will and a trust is that a will is subject to probate, which is a legal process that involves a court reviewing and validating the will to ensure that it is legally valid, interpreting its provisions, and overseeing the distribution of assets. Probate can be time-consuming, costly, and public, with court documents and proceedings becoming part of the public record. In contrast, a trust can avoid probate because trust assets are held by the trustee, and upon the death of the grantor, the trustee can distribute assets to the beneficiaries without court intervention.

Another significant difference between a will and a trust is that a will only takes effect after a person's death, while a trust can take effect during a person's lifetime. During the Grantor's lifetime, the trust can be used to manage and distribute assets while they are alive, and they can also serve as the trustee, giving them continued control over their assets.

Limitations and exceptions to the differences between a will and a trust depend on the specific circumstances of each case. For example, the use of a trust may not be necessary or cost-effective for small estates, as probate fees may be relatively low. Conversely, a will may not provide sufficient protection for individuals who have complex family or financial situations that require more advanced estate planning. In such cases, a combination of a will and trust may be appropriate.

If you are considering creating a will or trust or need further advice about estate planning, I recommend consulting with a licensed attorney who specializes in estate planning to discuss your specific needs and goals.