Is a Will Based Plan or a Trust Based Plan Better for Me

     Often clients will seek my estate planning guidance and a common initial question is whether a Will or a Trust is a better fit for them.  The answer, as you may imagine, is completely dependent on what the client wishes to accomplish and in what manner.

    A Will is able to name an executor of your estate, the beneficiaries of your estate, guardians for minor children, among other things.  I always say a first basic goal of estate planning is to avoid probate.  Why you might ask?  To most clients surprise, everything that passed through a Will is in fact subject to the probate process.  This means all assets that pass through your Will must be supervised by the probate court which involves probate costs to your estate or your heirs.  Additionally, probate is a public process and notices are published in newspapers and other materials to notify all heirs and potential creditors that they may be able to take a bite at the apple, your estate, by filing a claim against it.  Lastly, probate can take up to 12 months to formally close, which could result in up to a 1 year delay in your beneficiaries using and enjoying your property (assets, real property, personal property, etc.).  These are some of the downsides to a Will based plan.

     A Trust on the other hand (living trust, revocable trust, revocable living trust) is what I describe a Will on steroids.  It accomplishes everything a Will does, with some added protections.  A successor Trustee is named (called an executor or personal representative in a Will), beneficiaries are names, guardians for your children, etc.  There is no probate process with a Trust based plan, thus avoiding probate costs, avoiding any delays in distributing your assets to the trust beneficiaries, and the terms of the Trust are kept private and confidential.  There are some addition protections in a Trust based plan.  You can elect to stipulate to whom, in what manner, and when you beneficiaries receive the Trust proceeds.  It can be left outright to the beneficiary, or it can be kept in further Trust so as to allow beneficiaries to access their share at different stages or ages in life.  You can continue to "control the purse strings" of your estate well after your death.  Special needs provisions, estate tax savings provisions, and many other client specific interests can be provided for in a very efficient manner.

     After a brief discussion together we can discern whether a Will based or Trust based plan better fits your situation.  If you have no other estate planning documents, I always advise, whether a Will or a Trust is selected, looking into a package of ancillary documents which often include a Durable Power of Attorney, Massachusetts Health Care Proxy, Living Will, Homestead Declaration, and /or a HIPAA release.