Josh Bryant, Managing Attorney
Confused about the differences between wills and trusts? If so, you’re not alone. While it’s always wise to contact experts like attorney Josh Bryant, it’s also important to understand the basics. Here’s a quick and simple reference guide:
What Revocable Living Trusts Can Do That Wills Can’t
1. Avoid a guardianship.
A living trust allows you to authorize your spouse, child, or other trusted person to manage your assets should you become incapacitated and unable to manage your own affairs. Wills only become effective when you die, so they are useless in avoiding guardianship proceedings during your life. This provides a lot of security for many.
2. Bypass probate.
Property in a revocable living trust does not pass through probate. Property that passes using a will guarantees probate. The probate process, designed to wrap up a person’s affairs after satisfying outstanding debts, is public and can be costly and time consuming sometimes taking years to resolve. Josh Bryant believes this is probably one of the top two key benefits of a trust. Trusts are more effective and efficient in accomplishing your goals.
3. Maintain privacy after death.
Wills are public documents; trusts are not. Anyone, including nosey neighbors, predators, and unscrupulous “charities” can discover the details of your estate if you have a will. Trusts allow you to maintain your family’s privacy after death.
4. Protect you from court challenges.
Although court challenges to wills and trusts occur, attacking a trust is generally much harder than attacking a will because trust provisions are not made public. Court challenges make your estate distribution an inefficient process. A trust can provide you with security from this possibility.
5. Allow for structured payouts.
Under a will, once an heir turns eighteen, they automatically get everything under the will unless you have some sort of trust which requires a payout over time. Young parents and grandparents who may leave property to their grandchildren can use a trust to ensure that assets are paid out over time rather than given in lump sum to someone who may not be mature enough to handle it. Josh Bryant believes this is one of the two best reasons to have a trust.
What Wills Can Do That Revocable Living Trusts Can’t
1. Name guardians for children.
Only a will - not a living trust or any other type of document - can be used to name guardians to care for minor children. The courts are not required to follow your wishes if the judge believes that it would be in your children's best interest to be in the custody of another person, but most of the time the judge will follow your wishes. The security of knowing your children will be protected is in and of itself enough of a reason to get a will.
2. Specify an executor or personal representative.
Wills allow you to name an executor or personal representative - someone who will take responsibility to wrap up your estate after you die. This typically involves working with the probate court, protecting assets, paying your debts, and distributing what remains to beneficiaries. But, if there are no assets in your probate estate (because you have a fully funded revocable trust), this feature is not necessarily useful.
What Both Wills & Trusts Can Do:
1. Allow revisions to your document.
Both wills and trusts can be revised whenever your intentions or circumstances change so long as you have the legal capacity to execute them.
WARNING: There is such as a thing as irrevocable trusts, which can only be changed under certain circumstances, using very specific methods. These are powerful estate planning tools in certain circumstances, but should be entered into with care and the assistance of Josh Bryant.
2. Name beneficiaries.
Both wills and trusts are vehicles which allow you to name beneficiaries for your assets.
3. Provide asset protection.
Trusts, and less commonly, wills, can be crafted to include protective sub-trusts which allow your beneficiaries access but keep the assets from being seized by their creditors such as divorcing spouses, car accident litigants, bankruptcy
trustees, and business failure. This is just another level of security that estate planning can provide.
While some of the differences between wills and trusts are subtle; others are not. Together, we’ll take a look at your goals as well as your financial and family situation and design an estate plan tailored to your needs that leverages the law in your and your family's favor and secures your assets in an effective and efficient manner. Schedule an appointment and let’s get started.
Josh Bryant is an attorney, entrepreneur, pastor, and visionary with a heart to see churches, businesses, and families more secure, more effective, and more efficient in fulfilling their mission and bringing glory to God.