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By: Scott Grossman on November 7th, 2023

Will vs Living Trust

A living trust, also known as a revocable trust, is a legal document that allows individuals to transfer their assets into a trust during their lifetime. The term “living trust” refers to the fact that the trust is created and active while the individual is alive. That is opposed to a testamentary trust, created through a will and goes into effect after death.

With a living trust, individuals can maintain control over their assets while alive and designate how those assets will be managed and distributed upon their death. The trust document sets out the terms and conditions for operating the trust assets and names a trustee responsible for carrying out the grantor’s wishes.

The main advantage of a living trust is that it helps avoid the probate process, which can be time-consuming, expensive, and public. When assets are held in a living trust, they are typically not subject to probate and can be distributed to beneficiaries more quickly and efficiently.

Another benefit of a living trust is that it allows for the seamless transition of asset management in the event of the grantor’s incapacity. If the grantor cannot manage their affairs, the trustee named in the living trust can step in and handle financial matters without court intervention.

A living trust can be an effective estate planning tool for individuals looking to maintain control over their assets, protect their privacy, and ensure a smooth transfer of assets to their beneficiaries. Consultation with a qualified attorney can further guide the creation and management of a living trust.

What is a Will? 

In California, a will is a legal document that serves as a formal declaration of an individual’s wishes regarding their assets and properties after their death. The specific definition of a will in California is outlined in the state’s Probate Code. According to this code, a will must meet particular requirements to be valid. These requirements include the testator being at least 18 years old or an emancipated minor and being of sound mind. The will being in writing and signed by the testator or someone else under their direction and in their presence.

Furthermore, the will must also be witnessed by at least two individuals who are not beneficiaries or related to the testator by blood or marriage. A will in California allows individuals to name an executor, who is responsible for administering the estate and ensuring the testator’s wishes are carried out. Additionally, a will can also include provisions for guardianship of minor children, charitable donations, and other specific instructions. The primary purpose of a will is to provide clarity and guidance for the distribution of assets and properties, giving individuals peace of mind in knowing that their loved ones will be taken care of according to their wishes.

Living Trust vs Will

When planning their estate, individuals often wonder whether a living trust or a will is the best option for their needs. While both documents are essential estate planning tools, there are several key differences to consider.

A living trust and a will serve as vehicles for transferring assets to beneficiaries after death. However, the main difference lies in when they take effect. A will document only goes into effect after the individual’s death. In contrast, a living trust can go into effect during the individual’s lifetime.

One of the main advantages of a living trust over a will is that it avoids the probate process. Probate is the legal process of administering a deceased person’s estate, which can be time-consuming and expensive. Assets held in a living trust are typically not subject to probate. In contrast, assets distributed through a will must go through the probate process.

Privacy is another factor to consider when choosing between a living trust and a will. When a will goes through probate, it becomes a matter of public record. That means anyone can access information about the deceased person’s assets and beneficiaries. In contrast, a living trust is a private document and does not become part of a public record.

Another critical distinction between a living trust and a will is that a living trust can provide for the management of assets in the event of the grantor’s incapacity. Suppose an individual becomes incapacitated and unable to manage their affairs. In that case, the trustee named in the living trust can handle financial matters without needing court intervention. A will does not provide this level of protection.

Cost of Living Trust vs Will

Cost is another consideration when comparing a living trust and a will. At the same time, the cost of creating a living trust may be higher upfront. It can potentially save money in the long run by avoiding probate costs. Additionally, a living trust may be more cost-effective if the individual has assets in multiple states, as a will may necessitate numerous probate proceedings.

The key Differences Between Will vs Living Trust 

In California, living trusts and wills are estate planning tools that allow you to dispose of your property to beneficiaries. However, there are some critical differences between the two options.

Wills in California

A will is a simple legal document that provides instructions on distributing property to beneficiaries after death.

  • Any assets not held in a trust are subject to the California probate process. In other words, if your estate plan consists only of a will, then your estate must pass through probate.
  • Wills are public records, which means that anyone can access them.
  • A will allows you to state how you’d like your affairs to be handled.

Living Trusts in California

A living trust is a complex legal arrangement that allows you to transfer ownership of property, managed by a third party, and distributed to beneficiaries at any time determined by the creator of the trust.

  • A living trust can keep your assets from probate proceedings, saving time and money.
  • Trusts are private records, while wills are public records.
  • A living trust is revocable unless you expressly declare it irrevocable.
  • A trust can hammer out the details about your beneficiaries reaching adulthood before receiving their inheritance. At the same time, wills don’t provide the same precision.
  • A living trust can direct your trustee about managing your assets if you become incapacitated.

Which one is right for you: Will vs Living trust? 

Choosing between a living trust and a will in California depends on individual circumstances and preferences. If you have any dependent children, it often makes sense to use both. A person can have a will and a living trust. While for some, it might only make sense to have a will. It’s recommended that all individuals who choose to have a living or revocable trust also have a will. That ensures anything that isn’t explicitly held by the trust can pass to beneficiaries without being subjected to intestacy, the state of dying without a will, laws in California.

Ultimately, deciding between a living trust and a will depends on the individual’s needs and circumstances. Consulting with an attorney experienced in estate planning can help individuals make informed decisions. But most importantly, ensure their assets are protected and distributed according to their wishes.

Knowing the Basics of Proper Administration

Please review our articles on the Beneficiary’s Rights in CaliforniaSuccessor Trustee Tax-Related Duties, and Removing a Trustee in California. If you would still like more information on Trust Litigation and removing a trustee, check out our complete Overview of California Trust Litigation, available on our website. And if you have more questions about your rights as a Beneficiary and what you should know moving forward.

If this aligns with what’s happening to you, it’s best to reach out as soon as possible. The longer you take, the more damage your Trust could take. Please call us at (888) 443-6590 or fill out our Get Help Now form, and we would be more than happy to see if we can assist you.