There are several useful comparisons between a Will and a revocable Trust:

  • a Will becomes effective only at death, but a Trust becomes effective when signed and funded
  • a Will must be approved by probate court to become effective after death; a Trust needs no such approval to be effective
  • a Will does not require re-titling of assets during lifetime, but a Trust (to have effect) often requires re-titling of assets to the name of the Trust while the trustmaker is alive
  • a Will controls only the assets in the testator’s name alone at death; a Trust controls only the assets titled in the name of the Trust–or later transferred over to the Trust
  • a Will is potentially a public document because it must be filed with the probate court at death; in contrast, a Trust is a private document and can remain so unless there are lawsuits or disputes concerning the Trust
  • a Will does not provide for asset management while the testator is alive but disabled; a Trust may provide for management of Trust assets while the trustmaker is disabled.

The following table compares  features and functions of Wills vs. Trusts:

At Incapacity: (unable to handle your own financial affairs.) Court Control: Court appointee oversees your care, must keep detailed records, reports to court, and may need to post bond.  Annual accounting for revenues and expenses filed with Court. No Court Control: Your successor Trustee manages your financial affairs according to instructions in your Trust for as long as necessary.
At Death: Probate: Your debts and taxes paid and remaining assets distributed by Personal Representative per instructions in your Will. No Probate: Your debts and taxes paid and assets distributed by successor Trustee per instructions in your Trust.
Time: At Death: Usually 4 to 9 months (longer for estate tax filing).At Incapacity: Court involved until recovery or death. At Death: Usually a few months (longer for estate tax filing).At Incapacity: No significant delays.
Flexibility and Control: Limited: Court processes, not your family, have limited control at incapacity and death.  When you die, assets are distributed according to your Will.  You can change your Will at any time. Maximum: You can revoke/change your Trust at any time before death or incapacity. Assets stay under control of your Trust, even at incapacity or after your death.
Privacy: None: Court proceedings are public records. Maximum: Trusts are not public record unless dispute occurs. Your Trustee and family can take care of Trust’s finances privately.