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WASHINGTON — As people start the estate-planning process, many have the same question – is a trust or a will best for me?
A case can be made for both, said Attorney Mike Collins with the Collins Firm, but it’s important to know what each means and the process that must be undertaken to complete them.
A will is often associated with estate planning, Collins said, but it’s just one element of the process.
“A will is a set of instructions that does a lot of things, but the principle purpose for a will is to tell the world, tell our families, tell the legal system who gets what after I’m gone.”
If you’re relying on a will to relay that information, it needs to go through the probate process, a court proceeding where the will is authenticated and verified that it was done according to a state’s laws.
“Unless and until the will is submitted to the probate court and accepted by the court, the will is essentially a scrap of paper,” Collins said.
Mistakes in the will and probate process can result in the invalidity of the document.
“Just executing a will correctly is an important step in the process, which is sometimes neglected,” Collins said.
People look for ways to circumvent the time-consuming, expensive probate process – that may be where a trust is a good option, Collins said. There are other forms of wills, such as tenancy by the entirety or joint tenancy with right of survivorship that can be explored and may or may not include probate, he added.
A trust is transferring legal title or registered ownership to a trustee while still alive. The trustee then “owns the bank account or house or whatever so that when I die, the trustee picks up my instructions and follows them; distributes things to who I’ve listed,” Collins said.
Probate is not required for a trust. The probate process moves the legal title for assets to someone else, and with a trust, there’s no need for court to get involved because the legal title has already been transferred to the trustee.
There are different kinds of trusts, but in most cases the title can be transferred to yourself. That allows the trust holder to make decisions regarding assets, while designating a successor trustee who can “step into my shoes if I can’t manage for myself if I’m not capable of acting as trustee,” Collins said.
While trusts can be more expensive than wills, another benefit is that there is a plan if you’re alive and not able to make decisions for your affairs – be it a physical or mental impairment, Collins said.
Deciding which is best
Collins said trusts can be a “superior way to manage estate planning issues, avoid probate and do basic tax planning.” Still, trusts aren’t for everyone, he added.
There are two basic categories of people who may want to consider a will over a trust: younger people and those with limited means.
Younger couples don’t have much when it comes to assets, and their chances of being incapacitated soon are small, so a trust may not be the best route. Also, their financial and family situations are more apt to change, Collins added.
“The chances that they adopt a plan today that will take them the rest of their lives is relatively small,” Collins said.
People who don’t have enough to justify the expense of a trust shouldn’t go for that option either, Collins said.
“For these people, the fact is that once the taxes are paid, there is not much to distribute,” he said. “The less people have, the less likely we are going to need a trust.”