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What are the pros and cons of using a will versus a living trust?

Posted by Scott W. Spradley | Jun 24, 2024 | 0 Comments

When deciding between a will and a living trust, it's important to consider the advantages and disadvantages of each. Here's a summary of the pros and cons:

Pros of a Will:

Cost-Effective: Creating a will can be less expensive than setting up a living trust.

Simplicity: Wills are generally easier and quicker to create.

Flexibility: It's easy to make changes to a will as your circumstances change.

Guidance for Loved Ones: A will can provide clear instructions to help your loved ones settle your estate.

Cons of a Will:

Probate: Wills must go through probate, which can be a lengthy and public process.

Public Record: Once probated, a will becomes a public document, which means anyone can access the details.

No Protection from Creditors: Wills do not protect your assets from creditors' claims.

Estate Taxes: Wills cannot help you avoid estate taxes.

Pros of a Living Trust:

Probate Avoidance: Assets in a living trust do not go through probate, which can save time and maintain privacy.

Control: You can serve as the trustee and manage the trust assets during your lifetime.

Flexibility: Living trusts can be modified or revoked as long as you are competent.

Avoidance of Delay: A Will must go through probate and can take up to a year or more for your estate assets to be distributed to your beneficiaries. A Trust allows for immediate transfer of your assets in the manner you directed, without that delay.

Continuous Management: If you become incapacitated, a successor trustee can manage the trust assets without court intervention.

Cons of a Living Trust:

Cost: Setting up a living trust is generally more expensive than making a will.

Complexity: Trusts can be more complex to set up and maintain, requiring the transfer of property titles into the trust.

No Creditor Protection: Similar to wills, revocable living trusts offer no protection against creditors.

Estate Taxes: Living trusts do not provide tax advantages over wills; assets in the trust are still subject to estate taxes.

Both wills and living trusts have their place in estate planning, and the choice between them depends on your individual circumstances, preferences, and goals. It's often recommended to consult with an estate planning attorney to determine the best approach for your situation.

How do I decide which option is best for me? 

Deciding whether a will or a living trust is best for you involves considering several personal factors. Here are some key points to help guide your decision:

Your Location: Estate laws vary by state, so what's beneficial in one state may not be in another .

Your Assets: The complexity and type of your assets can influence which option is more suitable .

Privacy Concerns: If you prefer to keep your estate matters private, a living trust might be the better option since it doesn't go through probate1.

Control: Consider if you want to manage your trust during your lifetime or if you're comfortable with it only taking effect after your death .

Cost: Determine your budget for estate planning, as trusts can be more expensive to set up and maintain .

Flexibility: Think about whether you might want to change the terms of your estate plan in the future .

Probate: Reflect on whether you want your estate to go through probate, which can be a public and sometimes lengthy process .

Taxes: Understand the tax implications of each option, as both wills and living trusts are subject to estate taxes .

Beneficiaries: Consider the needs of your beneficiaries, including their ability to manage an inheritance or the need for protection from creditors .

Potential for Disputes: If there's a likelihood of your estate being contested, a trust might offer more protection against challenges.

It's often beneficial to consult with an estate planning attorney who can provide advice tailored to your specific situation and help you understand the nuances of each option. Scott Spradley can also assist in creating a comprehensive plan that aligns with your goals and provides for your loved ones in the best way possible.

About the Author

Scott W. Spradley

Scott W. Spradley is a native of Shelby, North Carolina and earned admission to the Florida Bar in 1988. Scott attended college on a golf scholarship, and was a golf enthusiast before electing to pursue a legal career. In addition to running a law practice, Scott serves as an Adjunct Faculty Memb...

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