The unexpected could happen at any time, so it’s always a good time to review your own estate planning needs. It’s something that many people may be overlooking, but knowing that your assets are going where you intend them can bring you peace of mind.
One of the most fundamental choices you can make as you’re thinking about how to pass your assets on to heirs is whether you hold assets in a revocable trust or more simply give them via a will. Both approaches have advantages, though trusts can provide significantly more benefits.
“For an individual with assets under their control, having a mechanism in place to direct who is in charge and who gets what is important,” says Stephen Taddie, partner at HoyleCohen Wealth Management in Phoenix. “There are simple reasons for the mechanism to include both a will and a trust.”
So the question is not an either/or. Here are the important things you’ll want to consider about wills and revocable trusts and why a will may simply not be enough of an estate plan for many people.
What is a will?
We’ve all seen enough films and TV shows to know the very basics of a will – a decedent leaves their assets to a set of heirs using a will – but the legal process behind a will is more complex than realized by many who have not gone through it.
A will “directs who should receive property that is in your name only, without a designated beneficiary, upon your death,” says Michael T. Baker, an attorney at Baker Law Group in the Boston area. “Without a last will, property may be distributed by the courts to your next-of-kin, regardless of what your wishes might have been.”
Property owned jointly (say, with a spouse) passes directly to the surviving owner(s). Accounts such as a Roth IRA with a named beneficiary go directly to the beneficiary, and anything in a trust follows its terms. That’s one reason to check your accounts now and make sure they have beneficiaries named.
Dealing with probate
One of the most cumbersome parts of resolving a will is the probate process. A probate court will appoint an executor to carry out the will and oversee the distribution of assets.
This process involves settling the estate with creditors, only after which are assets distributed. Probate is a public process, so predatory creditors may emerge that heirs may be unaware of.
“This process can take as long as one or two years to complete,” says Craig Kirsner, president of Stuart Estate Planning Wealth Advisors in Pompano Beach, Florida. “Court fees of up to 5 percent of your estate could be paid from the estate.”
“Another drawback to a will is that it may not achieve your objectives,” says Tracy Craig, a partner at law firm Mirick O’Connell in the Boston area. “You may be lulled into a false sense of security, thinking you’re all set when you’re really not. The will does not control joint assets. Also, if your beneficiary designations do not match your will, that will cause problems for the estate as well.”
And don’t think that you can evade the costs and delays of probate by simply having a will. You can avoid probate by owning assets jointly, naming beneficiaries or having it in a trust.
What is a revocable trust?
Revocable trusts, sometimes called living trusts, are being used more often in place of wills to reduce the expenses and delays of probate, says Baker. “Since they can be altered, they provide much of the flexibility of a will with the power of a trust.”
A trust is a legal structure that provides certain protections for your assets. One of the key benefits of the trust is being able to sidestep the probate process entirely, making it easier on heirs to claim the assets you want them to have. When you create a trust, you name a trustee (typically yourself or jointly with your spouse) whose job is to manage the trust’s affairs. You’ll also name successor trustees who manage the trust when you’re incapacitated or deceased.
When assets are held in a revocable trust, it’s the trust that owns them, though you are the beneficiary. For example, you can move assets in and out of the trust or even dissolve the trust and retake the assets. That’s in contrast to irrevocable trusts that can offer substantial tax benefits but that force you to relinquish control of the assets.
“In a standard revocable living trust, you are the trust maker, the trustee, and the beneficiary while you are alive,” says Shann Chaudhry, an attorney in San Antonio, Texas. “Then your designated successor trustee and beneficiaries take over upon your passing.”
Setting up a trust
One downside is that trusts cost more to establish than wills, and they require more legwork.
After you set up the legal structure for a trust, you have to retitle any assets you want to be governed by the trust documents. Once inside the revocable trust structure, your assets can skip the probate process and be distributed according to your wishes.
“To the general public, a trust may seem like an advanced tool only for the wealthiest among us. But the reality is that trusts are a foundational estate planning tool with a solid history for being highly effective in ensuring a person’s wishes are carried out,” says Chaudhry.
“Your beneficiaries don’t have to deal with the added legal and court fees or time dealing with probate after you pass, which can add another level of stress during an already difficult time,” says Andrea Woroch, a consumer and money-saving expert.
In the event of an incapacitating disability, a successor trustee can step in and manage your property, avoiding a pricey court-supervised distribution of your assets.
Trusts protect your privacy
Another benefit: “There’s no risk of your finances becoming public knowledge, because you don’t have to involve the courts with a revocable trust,” says Leslie Tayne, an attorney at Tayne Law Group, in the New York City area.
“The vast majority of celebrities utilize the revocable trust structure because they do not wish for the public to know the type of assets they have and the trust they set up for their beneficiaries,” says Alvina Lo, chief wealth strategist at Wilmington Trust in the New York City area.
“The more complex your life is and the more assets you have, the more likely you should use a revocable trust,” says Lo. “If you have properties in multiple states or if you have nosy relatives who may want to look at your will and contest it, do a revocable trust.”
Trusts can also be useful if you want to keep money in your family for generations. By setting up a revocable trust with dynasty provisions, you can help protect multi-generational wealth.
“After you and your spouse are gone, a bulletproof trust is set up for each of your children that’s designed to be 100 percent divorce-protected, 100 percent creditor-protected and 100 percent lawsuit-protected,” says Kirsner.
“After your child passes away, the funds in the trust don’t go to that child’s spouse. Those trust assets only go down to your grandchildren in the same bulletproof trusts,” says Kirsner. These trusts can also limit a grandchild’s access to the money to a specified age, “so they don’t make dumb mistakes early in life.”
But a trust alone does not solve all your estate planning needs, says Tracy Craig. “If you create a revocable trust, you also need a will,” she says.
This will may be less complicated than a traditional will because the trust handles the major financial assets. You also have the option of making the trust the beneficiary of a will.
“A common clause is that any assets not owned by the trust will be paid to the trust,” says Morris Armstrong, head of Morris Armstrong EA in Cheshire, Connecticut.
Revocable trust vs. will: How to choose
“It is important to have an estate plan in place, especially now during the pandemic,” says Craig, noting that having everything already set up avoids many problems.
Here too, it’s important to know that each approach has benefits in a given scenario.
1. A will can be set up faster and cheaper
A will can be set up faster than a trust, making a difference in urgent circumstances.
“In terms of COVID-19, a will can be prepared more easily than a trust can be prepared and funded,” says Armstrong. He stresses the funding aspect, which requires you to retitle any assets that you want protected by the trust.
It may be more difficult to retitle your financial accounts during the pandemic, especially if you have to go to banks or other institutions in person. And if you can’t move the assets to the trust, you’ve lost all its benefit.
“Without the proper titling of assets, you still have to go through probate, and you just spent all that money and time creating the revocable trust and still have to go through probate at death,” says Lo.
However, one downside is that wills may have to be signed and witnessed in person, although some states have allowed video conferencing to comply with social distancing and limit the spread of COVID.
2. A trust is better for an incapacitated person
However, a trust structure offers a key benefit if someone becomes incapacitated due to illness. To that end, trusts are usually accompanied by two other legal documents: a medical advance directive and a durable power of attorney.
“These documents allow people to make medical decisions on your behalf and manage your finances if you become incapacitated,” says Craig. “Young people need to be thinking about this and taking it seriously in a way that they typically have not in the past.”
“If you were to become disabled by a complication due to COVID-19, a revocable trust could be advantageous over a will,” says Tayne. “Your successor trustee can step in and handle your assets while you’re alive but unable to do so, and this isn’t an option with a will.”
“One oddity that can crop up is that some custodians do not honor a durable power of attorney with respect to directing a trust, and require that a co-trustee be named or a successor trustee step up,” says Taddie. It can be a challenge “because during a mental or physical decline, the trustor may fear giving up control, and a named successor trustee may hesitate to class a loved one as incompetent.”
3. Trusts may be cheaper and easier than you think
While consumers may view trusts as something that’s above their means, it may make sense with a lower net worth than you might expect.
“For anyone who owns a home or has over $150,000 in assets, a trust-based estate plan is typically better suited, since it protects your assets,” says Woroch.
“These days you can create a will or trust online in a matter of minutes and right from home for far less,” she says, noting one website where a trust can be established for about $400.
And if even that stretches the budget (and even if it doesn’t), you can set up a legally binding trust or will for no charge at FreeWill.
However, more complex trusts may need the help of a lawyer, and complications may arise, even in well-designed trusts.
4. Trusts may be better with backed-up courts
The process of settling a will could take much longer than you expect, especially if there are any delays in the system. So a trust may be a better solution because it allows you to skip probate.
“While you’re waiting for the courts, who will have the authority over your accounts to pay for immediate items, like the mortgage and funeral costs,” asks Lo.
While it can be easy to put off issues such as estate planning because of the sensitive emotional issues involved, not to mention the family drama that can be stirred up, it’s imperative that you have a plan in place, especially given how quickly health issues can turn serious.
“Always remember that someone has to have the mental capacity to create many legal documents, and waiting too long can be problematic,” says Taddie.
And given the complex nature of estate planning, you need an attorney for all but the simplest operations if you want to ensure that your assets are distributed according to your wishes.
“They might be expensive,” says Kirsner, but “with an estate plan you can buy expensive and cry once or buy cheap and cry forever. Isn’t that often true with many things in life?”
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