Can You Use a Trust Instead of a Will?

If you have never constructed an estate plan, you may be wondering which documents you’ll absolutely need to have in place in order to cover your most critical bases. If you are a parent of minor children, you’ll need to designate a guardian for them. Every American adult should also have both an advance healthcare directive and a power of attorney designation made in the event that they become seriously ill or injured and cannot communicate medical preferences to their care team.

There are a host of additional estate planning tools and resources that may be beneficial to include in your overall estate planning strategy. But, the final “absolute must” document that you’ll want to work with an attorney to establish is a will or a living trust.

Wills and Living Trusts – The Basics

Both a will and a living trust will allow you to pass along most of your property, intellectual property, digital assets, and other intangible assets to your loved ones after you’ve passed away. Some financial accounts may need you to name your beneficiaries explicitly, as these assets will not be passed along as a matter of course through a will or living trust.

Wills vs. Living Trusts

The primary benefit of executing a will—as opposed to a living trust—is that a will is relatively easy to draft. While you’ll want to seek your attorney’s guidance throughout the drafting process, creating a simple will doesn’t involve much more than expressing your wishes regarding how you’d like your assets to be distributed upon your death. As an experienced trust attorney – including those who practice at Yee Law Group, PC – can confirm, each state has different requirements about how a will must be executed in order to be considered enforceable, so you’ll want to follow your lawyer’s instructions to the letter.

The primary benefit of executing a living trust—as opposed to a will—is that gifting your assets via a living trust will allow your loved ones to avoid the probate process. Some states only subject wills to probate if there is reason to believe that they aren’t legally enforceable or a dispute arises regarding a will’s contents. But, other states subject all wills to probate. Allowing your loved ones to forgo this process can save them time, money, and stress… which is a profound gift during the period of intense grief that will inevitably follow your death.