What is the Difference Between a Trust and a Will?
April 16, 2018
Many people have heard the term “trust” or “will”, but don’t understand the key differences between them and how to choose what is best for their situation. Both of these terms describe important legal documents that make end of life planning easier, and when combined, can create a complete estate plan.
A look at trusts and wills:
Timing
The first major difference between the two terms is when they take effect. A will only takes effect after a person has died, a trust takes effect immediately. A will designates who will receive property after death and who will be the legal representative to distribute the property in the will. A trust can be used to start distributing property during your lifetime, at death, or after death.
The legal representative in this case is called a “trustee” (this can be a person, institution, bank, etc.) and the person receiving the income or property is called a “beneficiary”. Lastly, a will affects property after death named in the will, while property distributed under a trust must be transferred and in the trust’s name, for example, “The Miller Family Trust”.
Probate
Another difference between a trust and a will is the probate process. A will must go through probate, which means a court will read the will and oversee the proper administration of it as well as verify the validity of it. A court will ensure the right individuals are distributed property outlined in the will.
A trust does not have to be filed with the court and does not go through probate. Distributions under a trust document are private, while a will becomes public record. Because a court does not oversee the process, a trust can save time and money for the estate and its administrator.
There are several instances, such as if there is a surviving spouse, that allow assets to skip the probate process, these include:
Property owned in joint tenancy (bank account or a house)
Payable on death assets (bank accounts, retirement accounts, life insurance policies, etc.)
Anything held in a trust
Cost
It is important to understand the cost of administering a will and the cost of creating a trust or estate plan. When a probate attorney administers a will it is typical to be paid a percentage, usually between 1-6%, of the probate assets. For example, if an estate has $250,000 in assets, then a typical probate attorney is paid $2,500 – $15,000. The state of Pennsylvania statute regulating probate attorney fees states the fee must be “fair and reasonable”. This fee is paid out of the estate, so the executor of the will or the beneficiaries are not responsible for this cost.
An average estate plan in Pennsylvania can cost anywhere from $800 – $4,000, but is typically around $1,500. The fee is paid during the life of the “trustee”. The documents can be time intensive, but also allows you to plan for disability or tax savings.
It is ultimately up to you to decide which legal document will be best for you and your beneficiaries by speaking with an attorney. It is important to note that only a will can name a guardian for your child(ren) in the event of both parents’ deaths. In addition, a will can indicate end of life decisions and outline funeral arrangements.
In addition, if a loved one has recently passed and left a will, speaking with a probate attorney is an important first step during this difficult time. They are experts in the process and will help you with confusing court hearings and documents.
For more information or to schedule a consultation with us here. Our office is located in Pittsburgh. Call Kim A. Bodnar, Attorney at Law today.
NOTE: This is for informational purposes only and does not constitute legal advice.