You’re ready to face the task of documenting how you will pass along your assets to your family and friends. But you’re stuck: Should you use a trust or a will? Here are five considerations.
Trusts avoid probate; wills don’t. Probate is the legal process estates generally have to go through. It typically involves lawyers, paperwork and fees. A trust avoids probate because assets are owned in the name of the trust and are immediately accessible to the trust maker’s designated successor.
Trusts provide creditor protection for your inheritance. Your children’s creditors, such as a divorcing spouse, unpaid credit card bills, bankruptcy or a business loss, can take a significant piece out of the inheritance. A trust allows you to safeguard the inheritance from creditors, as it keeps assets out of the beneficiary’s name. Ownership of assets is in the trust, ensuring that the money is available to your kids and their kids.
Trusts protect government benefits for a beneficiary with disabilities. Have a child or grandchild with a disability? If you leave assets via a will, benefits like Social Security and Medicaid can be lost. However, in a trust you can ensure that the benefits continue to be available. Your inheritance will be available to pay for expenses not covered by governmental benefits.
Trusts can administer assets for minor beneficiaries without court intervention. The law says that a minor does not have the legal capacity to receive assets. If assets pass to a minor under a will, the court appoints a conservator to receive the inheritance for the minor, and the conservator is required to report annually to the court to make sure the assets are being used appropriately. Even the surviving parent does not have the ability to act as the child’s legal representative until the court says so. There may be substantial costs involved, and long delays are inherent in administering funds for minors. However, by creating a trust to receive the assets that pass to a minor or young adult, you reduce court involvement. The person you deem able to manage the assets for the beneficiary is in charge. The beneficiary can use the assets only for purposes you decide are important or at the age you dictate.
Of course, this is just a summary of the advantages of establishing trusts, and there are details and factors you need to consider before making a final decision.
Indeed, estate planning usually involves some very complicated choices, and the provisions of your will and the kinds of trusts you need are dependent on your particular financial and family situation. Also, needs can change over time. The point is to not make automatic assumptions about what you may need or not need. Contact a professional for an estate plan that’s right for you.