Can a Trust Replace My Will?

If you have a trust, can it replace your will?

And my advice is, probably it should not.

The deal with wills, of course, is that they have to go through probate. And so in order to make whatever you’ve put in your will happen, we have to apply to the probate court, fill out the correct forms, get the correct signatures, everything has to look perfect, the judge gets, you know, a chance to look at it, everything has to be ordered. And so it’s a long process.

And so it is tempting to think about, oh, if I just have a trust instead, can that replace it? And trusts do not go through probate. They avoid that process. They also set up someone to be over the assets that are in the trust and say who gets them and when. So it sounds like a total swap. We need one or the other. We’re appointing someone, and we’re saying what happens to the stuff.

The thing that you can’t do in a trust is appoint a guardian. So we need, if we have minor children, we want to appoint a guardian in your will.

The other downside of a trust, which is a big downside, is that you have to fund a trust. Trusts only own exactly what you have put into them, which means, you know, doing paperwork on bank accounts either to transfer the account into the name of the trust or have the trust as a payable-on-death beneficiary, doing deeds, putting your house into the trust, doing, you know, beneficiary designations on all kinds of accounts to go into the trust.

Essentially, there must be a paper trail showing that an asset is owned by the trust or it’s not owned by the trust. And the flip side of that is that a will naturally covers everything that you own. Now, it doesn’t cover anything that you’ve transferred into your trust, because despite the fact that you probably still control it, use it, all the stuff, it’s not technically yours for the purposes of the will. But funding a trust is very, very important, and often we get started with it and, you know, maybe buy a new piece of property and don’t think about it or, you know, have a new account. So sometimes there is something that’s left over, which means that something is going through probate, it’s not in the trust, and I like to have what’s called a pour-over will.

So, I do in fact want your trust and your will to work together. I don’t want them to, goodness gracious, not say different things, but even just say the same thing. What I want your will to say is, “If I forgot to put anything into my trust, I know it has to go through probate, take it through probate, and put it into my trust.” And then all of your actual instructions are inside that trust. But if there is anything outside, we’ve got a will for the purposes of probate. So I don’t recommend completely, you know, one or the other, unless, of course, you’re just doing a will and we’re not trying to avoid probate. I do like them to work together, but they do many of the same things, and usually the goal with trust planning is that we don’t have to use the will at all.

So hopefully, you know, hopefully, you do just need a trust, but I wouldn’t advise relying on that. Do both.