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When people who have not had significant exposure to the intricacies of estate planning get to a point in their lives where they know they need to get their legal affairs in order, their first thought is often, “I need to get a Will.” And then, when they dig into the subject matter somewhat either by reading information online, or talking to friends, relatives, or professionals, they often hear things like, “You need a trust” or “We created our trust two years ago” or “My father passed away three years ago and he had a trust and it made the settlement of his estate easy.”

So then you get confused. Your thinking, “Do I need a will or a trust?” What’s going on here? So let’s start at a basic level and discuss the differences of a will and a trust.

A will, also known as a “last will” or a “last will and testament,” is a legal document that you sign providing for who will receive your estate when you pass away, and it designates the person in charge of making sure that your wishes expressed in your will, are carried out - This person is typically referred to as your executor or personal representative.

When you pass away with a will and assets like a home or a business or investments in your name, your executor and heirs will go through a court and attorney-involved process called probate, where a judge will sign various court orders that your will is valid, that your executor is enabled to deal with estate issues, and a judge will oversee the distribution of your estate to your heirs pursuant to the terms that were expressed in your will. Many people perceive this court and attorney-involved probate process, that is required when you pass away with assets titled in your name, as being expensive, time consuming, and an all-around hassle, because in many instances, it is difficult and cumbersome to get through.

Now there are many different kinds of trusts, but when people compare wills with trusts, they are typically comparing a will with a certain type of trust called a revocable living trust. The concept behind a revocable living trust is that your assets titled in the name of your RLT when you pass away are not frozen and they can be disbursed to your heirs (called trust beneficiaries) when you pass away without the expense and delay of a court probate proceeding.

When you set up your revocable living trust and title assets in the name of your trust during your lifetime, then, during your lifetime you do whatever your want to with your trust assets, but when you pass away, the successor trustee that you designated in the trust instrument can make distributions to your designated trust beneficiaries without having to get lawyers and courts involved as they would if they had to use your will to go through probate to gain access to your estate assets.

What makes this analysis even more confusing is that when people consider a trust because they want to make the settlement of their estate easier, they ask, “So do I have to put everything I own in my trust, including Traditional IRAs, Roth IRAs, 401(k) accounts, annuities, life insurance policies?” Well, “No.” because you are likely to own certain assets that are classified as non-probate assets, like IRAs and other retirement accounts. Because you can designate primary and secondary beneficiaries on these accounts who will receive the assets in these accounts when you pass away, these non-probate assets avoid probate by their nature, so you don’t have to transfer the ownership of these accounts to your trust during your lifetime.


0:00 Wills vs Living Trusts
0:12 "I Need a Will" People
0:27 First Exposure To Living Trust
1:06 What is a Will?
1:30 How Your Will Affects Probate
2:21 What is a Living Trust?
3:02 Trusts Help Avoid Probate
3:32 Nonprobate Assets
4:33 Extra Commentary