Will vs. Trust: Cost, Process and Uses

Wills and trusts are both legal instruments that ensure your assets are passed down to heirs according to your wishes. Generally, you need a will if you're married, have kids or own property. Setting up trusts is an extra step that can make sense if you have a large or complicated estate, or need more control over how assets are distributed.

The main difference between wills and trusts is that wills take effect only after you die, while trusts can take care of your assets while you’re still alive. Because of this, trusts tend to avoid probate, the legal process for distributing your property, which is public record and can take several months.

» Planning your estate? Here’s how to get started

Wills outline how assets should be managed upon a person’s death. They can include guardianship of children, distribution of property, charitable donations and whom you choose to serve as your executor, the person ensuring your wishes are carried out.

Trusts are separate legal entities set up to ensure that your assets go to the right beneficiaries in the way you choose. They can help give you more control over the distribution of your estate and even reduce your estate taxes if you have a large estate. Unlike wills, trusts need to be funded, which means that the various assets housed in the trust — property, accounts (investments, retirement, banking), etc. — must be properly titled to be in the name of the trust. 

Wills

A last will and testament, or will, designates how to manage your assets upon your death. The creator of a will, called the testator, elects an executor to handle estate affairs upon their death. These affairs can include the guardianship of minor children or pets, distribution of property and assets and funeral arrangements.

Wills do not include assets that are owned jointly — those will transfer to the surviving co-owner upon your death. State laws for wills vary, but most require that a written will is signed by the testator and two witnesses before it becomes legally binding and effective.

Trusts

Trusts form a separate legal entity and fiduciary relationship, where the creator, called the grantor, puts assets in the name of the trust and authorizes another person, called a trustee, to distribute those assets to the trust’s beneficiaries.

• Living trusts, also known as revocable trusts, allow you to change the beneficiaries and assets as long as you’re alive and physically and mentally able to do so. You can also name yourself as the trustee and name a co-trustee or successor trustee. If you become unable to manage the trust, the successor trustee can take over for you.

» Learn more: Do I need a revocable living trust?

• Irrevocable trusts are permanent once they’re signed and funded. The assets in the trust, and the beneficiaries you name, cannot be changed. This type of trust may help reduce your estate taxes, as the assets aren’t technically yours — they belong to the trust, which is a separate legal entity.

» Learn more: Revocable vs. irrevocable trusts

Making a will is a relatively easy way to ensure your assets go to the intended recipients. The process can be relatively affordable, too. Wills can range from around $0 to $1,000, depending on the complexity of the estate and the method used to create them. Trusts, which are more complicated, can cost from $600 for a simpler trust to around $3,000 for complex trusts.

Think of a will as table stakes in estate planning; it’s often the first step, and one that shouldn’t be skipped, but it can only cover so much. Directives, such as trusts, medical directives and power of attorney arrangements, can be used to ensure your wishes are carried out completely and thoroughly. Trusts, in particular, give you more control of your assets and potentially help you avoid estate tax. 

If you already have a trust, making a will is still necessary. A trust doesn’t include all your assets and property; a will does. Wills also allow you to indicate preferences that trusts don’t, such as who will be guardians for your children, if they’re minors, in the event of your death. 

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You need more control over your assets

Trusts give you greater control over your assets, as they can outline specific rules or conditions for how they will be distributed. For instance, if parents want their children to inherit income only at certain times, protect assets after a divorce or look after a child with special needs, these wishes can be accomplished through specific terms. You can even control how the inheritance should be spent.

But it can also be complicated to deal with assets once they’re held in the trust; for example, if you’re refinancing property, some lenders may make you remove the property from the trust. 

You’re concerned a will might be challenged in court

Since trusts are separate legal entities, the assets held in them aren’t subject to probate, as they’re technically no longer part of the estate. They’re also more likely to be set up with the help of an estate attorney, which can give them more legal validity.

Trusts also are effective once signed and funded, and if revocable, can be updated throughout your lifetime. This means that wills are more likely to be successfully challenged because it can be more easily argued that the will is outdated or was made at a time when the individual was not of sound mind or was under the influence of someone else.

Keep in mind, though, that some assets must pass through beneficiary designation and take priority over both wills and trusts. These can include retirement accounts and life insurance policies.

You have a large estate

In some cases, trusts can help reduce the amount of estate taxes beneficiaries have to pay when they inherit assets. Most people don’t have to pay estate taxes, so this may not be a significant factor in your decision between a will and a trust.

However, if you have a significant net worth, a trust can save you some serious taxes. Any assets above the federal tax exemption — $12.92 million in 2023 — will be subject to federal estate tax, which can be up to 40%, depending on the taxable amount. State estate taxes can also apply, sometimes starting at much lower amounts. A trust removes assets from your estate and can reduce your tax burden, though you’ll still have to pay gift taxes on your contributions.

Creditors are able to claim against both wills and living trusts, though it is often harder to claim against a living trust than a will. Only an irrevocable trust can guard assets against creditor claims because the grantor of a living trust is still considered its owner and can alter it.

You may want to take advantage of the benefits of both wills and trusts by including both in your estate planning. Here are the best ways to do this:

• Pour-over will. These are used as a contingency or catch-all alongside a living trust. It directs everything in your estate over to the living trust in case assets were not moved into the trust beforehand. For example, if a home was removed from the trust during a refinance and never retitled back into the trust, a pour-over will take care of transferring the home back into the trust.