Wills vs. Trusts: How to Choose the Right Estate Planning Tool to Protect Your Family and Your Legacy
- Attorney Staff Writer
- Aug 6
- 10 min read
Updated: Aug 23
Estate planning isn’t something you do only when you have a sprawling fortune or a complex mix of assets. It’s an exercise in making sure your family and the causes you care about are taken care of and your wishes are followed. One of the most common questions people ask when they begin estate planning is whether to use a will, a trust, or both. On the surface, wills and revocable living trusts may appear to perform the same function — directing who receives what after you die — but under the hood they work very differently. Understanding those differences can help you create a plan that meets your goals, minimizes costs, and protects your loved ones.
This article breaks down the key distinctions between wills and revocable living trusts. We’ll look at how they work, compare their advantages and disadvantages, explore real‑world scenarios, and answer frequently asked questions. By the end you’ll have a clear framework for deciding whether a will, a trust, or a combination of both is right for you.
What Is a Will?
A will (formally called a “last will and testament”) is a legal document that lays out how you want your property distributed after your death. In a will you can:
Name an executor (also called a personal representative) to carry out the instructions in your will;
Identify who should inherit specific assets such as your home, personal property, or investments;
Designate guardians for minor children and pets;
Make charitable gifts or leave instructions for funeral and burial arrangements;
Create a testamentary trust that goes into effect after your death and is controlled by terms in the will.
A will only takes effect after you die. It doesn’t control what happens if you become incapacitated during your lifetime, and it doesn’t avoid the probate process.
How Wills Go Through Probate
After you die, your will is submitted to the probate court in the county where you lived. A judge oversees the administration of your estate to verify that the will is valid, ensure your debts are paid, and make sure your property is distributed according to your instructions.
This process is called probate, and it generally follows these steps:
Filing: The executor files the will with the probate court and petitions to open an estate.
Notification: The executor notifies heirs, beneficiaries, and creditors that the estate is open.
Inventory: The executor locates and inventories all of the deceased person’s assets and determines their value.
Debt payment: Estate debts, taxes, and expenses are paid from estate funds.
Distribution: After debts and taxes are paid, the remaining assets are distributed to the beneficiaries according to the will.
Probate procedures vary by state, and the process can range from a few months to several years depending on the complexity of the estate and whether anyone contests the will. Probate fees can include court costs, executor fees, attorney’s fees, appraisal fees, and accounting fees.
Example: Susan’s Will
Consider Susan, a single mother of two adult children, who owns a house, a small business, and some retirement accounts. She writes a will that leaves the house to her son, the business to her daughter, and her retirement accounts to a charity. When Susan dies, her executor submits the will to probate. The court validates the will, ensures that Susan’s debts and taxes are paid, and then distributes her property according to her wishes. Susan’s estate must remain open until all debts and taxes are settled and the probate judge approves the final accounting.
What Is a Revocable Living Trust?
A revocable living trust is a legal arrangement you create while you’re alive. You transfer ownership of your assets into the trust, but because the trust is revocable, you can change, amend, or terminate it at any time. A trust typically involves three parties:
Grantor (or settlor): The person who creates the trust and funds it with assets.
Trustee: The person or institution (often the grantor) who manages and controls the trust assets according to the terms of the trust document.
Beneficiaries: The people or entities who will receive the assets in the trust.
When you create a revocable living trust, you typically serve as both the grantor and the initial trustee, which means you continue to control your assets just as you did before. You also name a successor trustee who will manage the trust if you become incapacitated or pass away. The trust becomes effective immediately and continues after your death, avoiding the need for probate for any assets held in the trust.
Funding the Trust
For a revocable living trust to be effective, you must transfer ownership of your assets into it. This process is known as funding the trust. Funding can include retitling real estate, transferring bank accounts, or changing beneficiary designations on life insurance and retirement accounts. Assets not retitled into the trust will not be controlled by the trust and may still be subject to probate.
Example: John’s Revocable Living Trust
John, a widower with two grown children, creates a revocable living trust. He transfers his house, brokerage accounts, and checking accounts into the trust but keeps his retirement accounts in his own name and names the trust as the beneficiary. He names himself as the trustee and his daughter, Karen, as the successor trustee. If John becomes incapacitated, Karen can immediately step in to manage the trust assets for his benefit, and when John dies, Karen can distribute the trust property to John’s children without going through probate. Any assets not in the trust will be governed by John’s “pour‑over will,” which directs those assets into the trust at his death.
Key Differences: Probate, Privacy, Control, and More
Both wills and trusts allow you to direct how your assets are distributed after your death, but they differ in how they achieve that result. Let’s examine the major differences.
Probate
Wills: Every will must go through probate. The court supervises the administration of the estate, ensuring that the will is valid and the executor properly distributes assets. Probate can be lengthy and can involve significant costs. Probate is also public: the will becomes part of the public record, and anyone can view details about your estate.
Revocable living trusts: Assets held in a revocable living trust avoid probate entirely. The successor trustee can distribute trust assets privately and quickly, without court supervision. This saves time and expenses, particularly for large estates or property located in multiple states.
Why it matters: If you have significant assets or property in more than one state, a trust can streamline the process of transferring assets to your heirs. If your estate is small and uncomplicated, the cost savings of using a will may outweigh the benefits of avoiding probate.
Privacy
Wills: Once probated, a will becomes part of the public record. Anyone can see the details of your estate, including who inherited what. This can lead to unwanted attention or disputes.
Trusts: The terms of a revocable living trust are private. Only the trustee and beneficiaries know the details. This privacy is especially important for individuals with high net worth, complicated family structures (such as multiple marriages or blended families), or concerns about confidentiality.
Control During Life
Wills: A will only takes effect after death. It doesn’t provide a plan for managing your assets if you become incapacitated. If you can’t manage your affairs, your family may have to go to court to appoint a guardian or conservator.
Trusts: Because a revocable living trust is effective during your lifetime, you can use it to plan for incapacity. If you become ill or are otherwise unable to manage your assets, your successor trustee can step in without court intervention. This can provide continuity and avoid the need for a court‑appointed guardian.
Flexibility
Both wills and revocable living trusts are flexible and can be changed, but the process differs.
Wills: To change a will you can either create a new will that revokes the old one or sign a codicil, which amends specific provisions. Both options require witnesses and formal signing to be valid.
Trusts: Amending a trust is often simpler. You can change the terms of the trust, remove or add assets, or revoke the trust entirely by signing an amendment or restatement. Because you remain the trustee and the grantor, you have control over the trust during your lifetime.
Asset Protection
During your lifetime: Neither wills nor revocable trusts protect your assets from your own creditors or lawsuits. If you are sued, your property can be used to satisfy a judgment whether or not it’s in a revocable trust.
After your death: A will distributes your property outright to the beneficiaries unless you create a testamentary trust within the will. Those assets become part of the beneficiary’s estate and can be reached by their creditors, divorcing spouses, or mismanagement. A living trust can distribute assets to beneficiaries over time, protecting them from creditors, divorce, or reckless spending. For example, a trust can specify that assets are distributed in stages (e.g., when the beneficiary reaches certain ages) or that they remain in trust for the beneficiary’s lifetime with a third‑party trustee in charge.
Costs
Upfront costs: Drafting a will is generally less expensive than creating a trust. A trust requires more comprehensive drafting and additional steps to fund the trust, which increases the cost.
Long‑term costs: Estates administered solely under a will can incur probate fees, including court costs, legal fees, and executor fees. For large estates the cost of probate can exceed the cost of drafting and funding a trust. Trusts may result in lower long‑term costs because they avoid probate, but they still require time and resources to administer and may require tax returns or accounting.
Special Considerations
Certain situations may make a trust more attractive than a will:
Property in multiple states: If you own real estate in more than one state, your estate may need to go through probate in each state. A trust can consolidate your property into one entity and avoid multiple probates.
Planning for incapacity: If you’re concerned about becoming incapacitated, a trust provides a private, flexible way to manage your assets without court intervention.
Blended families or complex dynamics: A trust can help control and protect assets for children from a previous marriage while providing for a current spouse.
Special needs beneficiaries: A trust can preserve eligibility for government benefits by holding assets for the benefit of a person with disabilities.
Long‑term care: If you anticipate needing long‑term care, a trust can manage your assets and ensure they are used appropriately for your benefit.
Will or Trust: Real‑World Scenarios
The decision between a will and a trust often depends on your personal circumstances. Here are a few scenarios:
Scenario 1: The Young Family with Simple Assets
Amy and Tom are in their early thirties with two young children. They own a house with a mortgage, some modest retirement accounts, and life insurance. Their primary concern is naming guardians for their children and ensuring that their kids will be provided for if both parents die unexpectedly. Because they don’t have complex assets or large net worth, they decide to create simple wills. Their wills name guardians, leave their assets to each other, and then to their children in a testamentary trust to be managed until the kids reach adulthood. Probate in their state is relatively straightforward, so they’re comfortable with the process.
Scenario 2: The Retiree with Property in Multiple States
Margaret is a retired teacher who owns her primary residence in one state and a vacation cabin in another. She also has several investment accounts and valuable personal property. Margaret wants to make sure her daughter, Lisa, can quickly settle her estate without dealing with two separate probate proceedings. She creates a revocable living trust, transfers her properties and investment accounts into it, and names Lisa as successor trustee. At Margaret’s death, Lisa will avoid probate entirely and can sell or transfer the properties according to the trust terms.
Scenario 3: The Entrepreneur with a Blended Family
Carlos owns a successful business and has two children from his first marriage and a new spouse, Megan. Carlos wants to ensure that Megan is financially secure but also wants his business to go to his children after Megan’s lifetime. Carlos creates a revocable living trust that leaves Megan income from the business after his death but directs that the business itself passes to his children when Megan dies. The trust also gives Megan limited access to the business proceeds for emergencies. Carlos’s will directs any assets not already in the trust to the trust at his death.
Scenario 4: The Grandparent with a Special Needs Grandchild
Peter has a granddaughter, Lily, who has a disability that qualifies her for government benefits. Peter wants to leave Lily part of his estate but doesn’t want the inheritance to jeopardize her benefits. Peter creates a special needs trust within his revocable living trust. After Peter’s death, the trustee manages Lily’s share for her benefit, using the funds for supplemental needs such as therapies and education. Because the trust owns the assets, Lily remains eligible for government assistance.
Frequently Asked Questions
Do I need both a will and a trust? Often, yes. Even if you have a trust, you should have a “pour‑over will.” This will acts as a safety net by directing any assets not in your trust at the time of your death into the trust. A will also allows you to name guardians for minor children and handle other matters that a trust cannot.
Can I write my own will or trust? Online templates and do‑it‑yourself kits exist, but mistakes in legal documents can cause serious issues. For example, a will that lacks the correct witness signatures may be invalid, and a trust that is never funded will not avoid probate. Consulting a qualified attorney ensures that your documents comply with state laws and accomplish your goals.
Does a revocable trust protect my property from nursing home costs? No. A revocable trust does not provide asset protection against your own creditors or long‑term care costs. To protect assets from nursing home expenses, you may need an irrevocable trust and a Medicaid planning strategy developed with an attorney.
What’s the difference between a revocable living trust and an irrevocable trust? A revocable trust can be changed or revoked at any time during your life, and you retain control over the assets. An irrevocable trust cannot be changed or revoked once it’s created without the consent of the beneficiaries and sometimes the court. Because you surrender control, assets in an irrevocable trust may be protected from creditors and may not be counted for estate tax purposes.
Will a trust avoid estate taxes? Simply creating a revocable living trust does not avoid estate taxes. However, certain types of trusts, such as credit shelter trusts, marital trusts, and generation‑skipping trusts, can be drafted to reduce or eliminate estate taxes. Estate tax planning is complex and depends on federal and state laws, so consult a professional for guidance.
Key Takeaways
A will directs how your property is distributed after your death and allows you to name guardians for minor children. Wills are relatively simple and inexpensive but require probate and become public record.
A revocable living trust holds your assets while you’re alive and directs how they’re managed and distributed after your death. Trusts avoid probate, provide privacy, and allow for incapacity planning but cost more to create and maintain.
Many people use both a will and a trust. A will can serve as a backup (pour‑over) to capture assets not placed into the trust and can handle tasks a trust can’t, like naming guardians.
Your choice should be based on your personal circumstances, including your assets, family dynamics, privacy concerns, and the complexity of your estate.
Estate planning is not one‑size‑fits‑all. When in doubt, consult an attorney experienced in trusts and estates. They can help you weigh the benefits and drawbacks of wills and trusts and design a plan tailored to your needs.
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