When people start the estate planning process, they often have common questions: What is the difference between a will and a trust? Is a trust the same as a will? Both are legal tools to help you establish terms for your property management and distribution, but they are different. A will is a document that takes effect only after your death, while a trust can manage assets during your lifetime and after. Many people use both.
At the Law Office of Andrew M. Lamkin, P.C., we focus exclusively on estate planning, elder law, estate administration, and asset protection. We provide families with personalized strategies that take the guesswork out of planning for the future. We also coordinate with financial advisors and accountants to create a comprehensive solution, protecting your assets and peace of mind. We proudly serve clients throughout Long Island and New York City, providing personalized estate planning solutions tailored to your family’s needs.
What Is a Will?
Wills are formal legal documents that allow you to:
- Identify beneficiaries, the people or organizations who will receive your property;
- Name an executor to manage your estate;
- Provide instructions for paying debts, taxes, and other expenses; and
- Nominate a guardian for minor children.
To transfer property using a will, your executor must go through the court-supervised probate process. While probate provides oversight, it also takes time, involves court fees, and makes details of your estate public.
What Is a Trust?
Trusts are legal arrangements where someone transfers property into a legal structure and names a trustee, who manages the property to benefit one or more beneficiaries. The legal structure, the trust, is not an entity like a corporation. It is a legal relationship recognized by the courts. Property titled in the trust’s name is in the trust.
Roles in a Trust
Trusts involve three essential roles:
- Grantor—creates and funds the trust;
- Trustee—manages the trust property according to its terms; and
- Beneficiaries—receive property or income from the trust.
These roles can overlap. For example, you can serve as both grantor and trustee in a revocable living trust.
Trust Types
Trusts include four basic, overlapping structures. They vary based on whether the trust begins before or after death and how much flexibility the trust allows to retake assets or change terms.
A living trust starts during your lifetime, while a testamentary trust begins after your death. You typically create testamentary trusts in your will. A revocable trust lets you change or revoke it during your lifetime, while an irrevocable trust generally cannot be changed once you establish it.
Trust Goals
You can tailor trusts to meet specific goals, such as:
- Avoiding probate by transferring property directly to beneficiaries;
- Protecting assets from creditors or lawsuits;
- Planning for possible incapacity;
- Providing for disabled loved ones while preserving their eligibility for government benefits;
- Deciding when and how beneficiaries receive property; or
- Minimizing estate taxes.
Trusts provide more flexibility and control than a will alone because they are so customizable to your unique situation and needs.
What Is the Difference Between a Will and a Trust?
Wills and trusts work in different ways:
- Timing. Wills take effect after you die, while trusts begin when you fund them, which can be during life or after death.
- Court involvement. Wills require probate court oversight, while trusts usually avoid probate.
- Privacy. Wills become part of the public record, while trusts remain private.
- Control. Wills distribute property outright, while trusts allow you to set specific terms on asset control and management.
- Guardianship. Wills let you name guardians for minor children.
- Cost and effort. Wills are usually less expensive to prepare, while trusts require more time and effort to set up, fund, and manage.
For many families, a combination of estate planning documents works well.
A Living Trust vs. a Will
When comparing a living trust to a will, living trusts:
- Begin during your lifetime,
- Continue after your death,
- Avoid or minimize probate, and
- Plan for incapacity.
Yet, living trusts and wills have a unique relationship. Many people combine living trusts with a specific type of will called a pour-over will.
Pour-Over Wills
Living trusts typically hold title to all or most of your property, but you may not transfer every asset you own into the trust before you die. When it comes to trust assets, trust instructions take priority over wills. If your will and trust contain conflicting instructions, the trust controls the property it holds, while your will governs property that you never placed into the trust.
A pour-over will works as a safety net by instructing that any property in your estate that has not yet been transferred into the trust before you die be transferred there afterward. While the assets covered by the pour-over will still go through probate, the trust terms ultimately control what happens to the property, keeping your estate plan consistent and comprehensive.
Frequently Asked Questions (FAQs)
Is a trust the same as a will?
No. Wills and trusts serve different purposes and have different legal requirements. A will provides instructions for after death, while a trust can control property both during your life and after.
Is a will better than a trust?
Which option is better typically depends on your goals. A will is easier and less costly to set up, but it requires probate. A trust avoids probate, offers privacy, and allows planning for incapacity, but it requires more time and effort upfront and to manage.
What are the disadvantages of a trust?
Trusts often cost more to set up and manage. You must also transfer assets into the trust, which sometimes means sacrificing some or all control over those assets.
What is one disadvantage of a will over a trust?
The most significant disadvantage of a will is that it requires probate, which can delay distributions, add costs, and make estate matters public.
Does a trust override a will?
It depends. Assets in a trust follow the trust’s instructions. Property outside a trust still follows your will.
Take the Next Step
The Law Office of Andrew M. Lamkin, P.C. has helped New York families create personalized estate plans for years. We focus on estate planning, elder law, and asset protection, so we have the knowledge and experience to design a plan that reflects your goals. Contact us today to schedule a consultation.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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