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Comparison of Will and Living Trust
 
No Will
Will
Living Trust
1. If you become
incapacitated during your lifetime
Normally, a court supervised guardian or conservator will be appointed to handle your finances, payment of expenses, etc. Same as "No Will." You can name a successor trustee to step in to manage your assets, pay bills, etc., without court involvement.
2. Upon your death Controlled by state law which usually will require a probate proceeding to manage and account for assets, supervise sales and payment of debts, and make distributions to heirs as determined under state law. Same as "No Will" except that you can name an Executor to manage estate process and direct distribution of your assets. Because assets are under control of your successor trustee, he/she can manage the assets, pay bills and make distributions to beneficiaries without court involvement (i.e., no probate).
3. Time and Expenses Involved If incapacitated: Court costs, attorney's fees and delays are involved in a conservatorship or guardianship proceedings. After death: Probate expenses (court costs, attorney's and executor fees) often total 5% to 8% of the assets. Delay is often 1 to 2 years, depending on state law. Same as "No Will." If incapacitated: Delay and costs are typically minimal. After death: No court costs; generally will have some legal fees (approximately 0.5% of estate value or less). Delays are minimal and usually depends on the type of assets involved in the trust.
4. Estate tax planning No opportunity to plan for tax savings. Can structure Will to avoid/minimize estate taxes. Can structure Will to avoid/minimize estate taxes.
5. Privacy Conservatorship (if incapacitated) and Probate (upon death) are part of the public record. Same as "No Will." Trusts are not made part of the public record and thus, maximum privacy is maintained.
6. Lifetime control N/A You can amend or revoke your Will at any time, thus controlling distributions, executors, etc. You can amend or revoke your trust during your lifetime.
7. Contestability Heirs or others may file adverse claims in probate. Depending on state law, heirs or others may generally contest a WIll by objecting during the existing Probate process. Trusts are more difficult to contest, and contestants must bring a separate court action to challenge the trust.
8. Out of state property Normally, will require an "ancillary" probate in each state in which real property is held. Same as "No Will." Avoids probate and ancillary probates of all property in the trust.