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Living Trust or Will: Learn the Advantages and Disadvantages

written by: W. A. Swan•edited by: Laurie Patsalides•updated: 5/19/2011

Everyone has an estate when they pass away. The estate will require management, of which there are many types. Two popular forms are living trusts and wills. There are advantages and disadvantages to both. Knowing these will help you decide which to use.

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    Estate Management

    A living trust and a will are two methods used to pass assets to loved ones or favorite organizations after death. Both types of estate management have advantages and disadvantages. If you are having trouble deciding which to use, you can create a revocable living trust and a will.

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    Probate

    One of the largest advantages to a living trust over a will is the ability to avoid probate. Probate is the validation through jurisdiction (court) of a living will and it can take years to resolve. Probate requires court permission to transfer any part of the will to the beneficiaries; while with a living trust assets can be dispersed without permission and much faster.

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    The Costs

    Another advantage living trusts have over living wills is that the cost is lower over time. The disadvantage is that the upfront cost is higher for a living trust than for a will. The reason for both of these is the need for a lawyer. While living trusts are more costly to set up due to the transfer of assets and rights to the trust, a will is more costly over time because of probate related costs, such as statutory fees which can take up to five percent of the estate before beneficiaries get anything.

    Taxes can be another disadvantage for a living trust. While the trust is in effect, any property or sales taxes are accrued from the assets. This leads to administration costs which will be discussed below. An advantage living trusts have over wills is that both the death tax and estate tax may be lower since the trust is an ongoing entity whereas a will is a final settlement to the IRS.

    Administrative costs are another disadvantage living trusts have compared to wills. A trust must maintain continual administrator monitoring during the life of the trust from creation to release of the last assets; this can take years. A will has less administration and therefore less administration costs.

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    Amount of Work

    The biggest advantage to a will is the ability to “set it and forget it". The only time the writer of the will needs to worry about it is when a new will needs to be written. The disadvantage of a living trust is that it is an ongoing process which requires paperwork and travel for the initial setup, as well as yearly maintenance to keep the trust current.

    Another advantage a will has over the living trust in regards to the amount of work required to maintain it is that once a person dies, the will is executed; whereas a living trust can continue after the grantor dies depending on the wording of the trust. Last, a living will does not need to be registered by law as living trust does need to be registered in some states.

    An advantage to the grantor in creating a will is that the courts supervise the executor’s job. This leads to more effective handling of the estate whereas a trustee of a living trust has almost free reign and he or she could be incompetent or unreliable to run the estate without any recourse.

    The ability to make changes is more advantageous with a living trust. With a will, a codicil must be executed to make any changes, whereas with a living trust a simple statement is sufficient. Wills require witnesses and a notarized copy; living trusts require a signature and a date.

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    The Beneficiaries

    If you are using a simple will or don't have a large estate, the main advantage is that the beneficiaries will get what is assigned to them at the end of probate; the disadvantage is someone can contest the will or in some states laws overrule part of the will, such as in community property states where the surviving spouse is entitled to a percentage of the estate.

    The main advantages to beneficiaries in a living trust are that they get the assets sooner, and no court permission is required to dispose of assets before the end of probate. The main disadvantage to beneficiaries of a living trust is that there may be guidelines as to how and when assets are transferred to the beneficiaries.

    When it comes to minor children, a will can seem more advantageous than a living trust. In a will the grantor has the advantage of naming the guardian for the minor children; while court approval must be granted as well, usually the courts allow the nomination of the grantor. The disadvantage is that if no nomination is given, the court will make the determination.

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    Legal Considerations

    A huge advantage living trusts have over wills is that they legally override a will in court every time. The living trust is considered an ongoing entity and can continue to exist after death along with any guidelines in the trust as well. Another advantage to living trusts is that, should the grantor become incapacitated, distribution of assets can begin before death of the grantor; whereas for a will, the grantor's life must end for the will to be executed.

    The disadvantage of having a living trust over a will is that the living trust legally requires the grantor to have a succeeding trustee, or person who will take over the trust should the first trustee or grantor become unable to manage it. Another disadvantage to living trusts is that if an asset was not added before the death of the grantor it becomes part of the probate court system and must be handled accordingly.

    References: Cornell University; Lectric Law Library, Palamony.com