Will vs. Living Trust vs. Living Will—What’s the Difference?

What is a Will?

A will outlines how you wish your assets and affairs to be handled after your death. It specifies who will receive your property, who will care for any minor children, and who will be responsible for executing your wishes. A will only takes effect after you pass away and must go through the probate process, where the court supervises the distribution of your estate. Wills are publicly available records, meaning anyone can look up the information they contain.

What is a Living Trust?

A living trust, or revocable living trust, is a legal arrangement where a trustee holds and manages your assets during your lifetime. Unlike a will, a living trust takes effect immediately upon creation. You can manage and benefit from these assets while you’re alive, and upon your incapacitation or death, they transfer to your beneficiaries according to your instructions without going through probate. This key benefit of a living trust speeds up the process, costs less, and provides privacy for your family.

What is a Living Will?

A living will is very different from a traditional will. Also known as an advance health care directive, this document outlines your wishes regarding medical treatment if you become incapacitated. It’s focused on your health care preferences rather than the distribution of your assets, covering decisions such as whether you want life-sustaining treatments, resuscitation, or pain management in certain medical situations.

Key Differences Between a Will, Living Trust, and Living Will

Purpose:

• A will manages asset distribution and guardianship after death.
• A living trust manages assets during life and after death.
• A living will directs medical care preferences when incapacitated.

Activation:

• A will becomes effective upon death.
• A living trust is effective immediately upon creation.
• A living will is effective when you’re unable to communicate your medical preferences.

Probate:

• A will is subject to probate.
• A living trust avoids probate.
• A living will is not related to probate or asset distribution.

Flexibility:

• A will can be updated any time before death.
• A living trust can be altered or revoked during your lifetime.
• A living will can be updated as long as you’re competent.

Choosing the Right Option for Your Needs

Selecting between a will, a living trust, and a living will depends on your unique circumstances and goals. Here are some considerations to help you decide:

• If you want a straightforward way to outline your final wishes and appoint guardians for your children, a will might be the best choice.
• If you wish to avoid probate, ensure seamless asset management, and maintain privacy, a living trust could be more suitable.
• If you want to ensure your healthcare preferences are followed when you can’t communicate them, a living will is a must.

Dying Without a Will or Living Trust

If you die without a will, known as dying “intestate,” your loved ones may face unintended complications. State intestacy laws will dictate how your assets are distributed, usually to the closest family members, but the specifics vary by state. Without a will, there is no named executor, so the court will appoint an administrator to manage the distribution of your assets. This process can be lengthy and stressful for your family, possibly causing disputes and delays in settling your estate.

Benefits of Professional Legal Advice

Creating the most advantageous estate plan is complicated. Having a knowledgeable attorney makes the process smoother and more effective. Professional legal advice provides customized solutions that reflect your specific needs and goals. You’ll receive expert guidance in navigating the legal requirements and potential pitfalls of estate planning for peace of mind that your documents are correctly prepared and legally enforceable.

Contact Bakerink, McCusker & Belden Today

You don’t need to be rich and famous to benefit from a will, a living trust, or a living will. Even if you are of modest means, you should create an estate plan if you have specific wishes about your end-of-life decisions, asset distribution, and child guardianship.

Bakerink, McCusker & Belden would be honored to help you craft or update your estate plan to meet your wishes. We have over 35 years of legal experience to guide you through your estate planning needs. Whether you need a will, a living trust, or a living will, our experienced attorneys are here to provide the legal guidance you deserve. Contact us today for a free, no-obligation consultation in Tracy, CA. We’ll help you plan for the future with confidence.