Comparing Wills and Living Trusts

estate planning attorneyBoth wills and living trusts are testamentary devices which can be utilized to provide for the handing down of your assets to the next generation in your estate after your death. There are benefits to both wills and trusts.

A revocable living trust is commonly used as an alternative to maintaining just a simple will. The purpose of this article is to show you the advantages and disadvantages of each of these testamentary devices.


When you write a will, after your death, the will must be probated. Probate proceedings can be time consuming and involve legal expenses. Property you maintain in other states will require ancillary probate proceedings in those states. The benefit of a will is it gives a court a supervisory role to see to it the assets are properly managed and properly distributed to the rightful beneficiaries. Individuals who feel they are rightful beneficiaries who are left out of a will, have various grounds to challenge the will after it is probated in the Surrogate’s Court.

It should be noted wills are public records which are maintained in the court and are open to be viewed by other members of the public. It is usually recommended that individuals who execute wills also have healthcare proxies and powers of attorney to deal with other advance planning directives.

Wills cost less to draft than trusts. Wills also require no maintenance.

Revocable Living Trust

Revocable Living Trusts do not need to be probated. If you own out of state property and the property is maintained in the trust, an ancillary probate proceeding in the state the property is located in, is no longer necessary. A drawback of the trust is there is no court supervision. In the event there is fraud, undue influence, duress, or disputes, a court will not automatically be involved to deal with these issues. A benefit of the trust is it is a private document and it is not available to be reviewed by the public. While a will disposes of the assets at the time of death, a trust can control the assets for long periods of time after the individual dies. A trustee is appointed who controls the assets to see to it they are not misused, misapplied or mishandled by the beneficiaries. A trust basically sets up a scheme or a plan to have an individual take over the management of the assets after your death and continue to manage them for the period of time indicated in the trust. Simply stated, you get to control your assets after your death.

Trusts are significantly more expensive to draft, prepare, fund and manage than a will. Trusts may require some maintenance over time.

No Will, No Trust You Die Intestate

Intestacy is the term for an individual who dies without a will or trust. If you die without a will or a living trust the laws in the state in which you reside will determine who your beneficiaries are. These laws normally go along the traditional blood lines. If you have young children at the time of your death and there is no will or trust, the state will determine, pursuant to state law, who raises your children as their guardian. It may not be the person or persons you want. It may not be individuals you feel are trustworthy to handle your assets after your death or to take care of your children. Individuals appointed to take care of your children and to manage their affairs may also charge fees to control your assets.

Write a Will or Trust

If you care about your loved ones, or your assets, and/or you don’t want to leave your family in a mess when you die, you should write a will or a trust. It simplifies and clarifies your estate plan and sees to it the individuals you really want to inherit your assets actually get them.Estate planning attorney in Metropolitan New York