Modesto, CA asked in Estate Planning for California

Q: When is a trust preferable over a will?

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2 Lawyer Answers
Carol A Fauerbach
Carol A Fauerbach
Answered
  • Estate Planning Lawyer
  • Folsom, CA

A: Both a will and a trust have their purpose, and an estate plan often contains both. Administration of an estate through a trust is typically cheaper and quicker for the beneficiaries to receive their distribution. Trust administration typically does not involve the court and therefore is more private. Probating of an estate based upon the terms of a will, or even without a will, typically involves court oversight and the costs for administration are set by law. In addition, a trust specifies how assets should be managed during your lifetime as well as after you die. A will only gives instructions for your estate after you die. Often an estate plan has both a trust and a will. A trust estate contains most of the property and the terms the terms of the trust provide instructions about how the estate is to be administered or distributed. However, if the individual forgets to put some property in a trust, then a "pour over" will can instruct that all remaining property gets distributed to the trust and gets administered accordingly. This is an extremely simplified explanation of how the two documents work individually and together, and you should speak with an estate planning attorney to discuss your particular situation and advise as to the best approach for you and your beneficiaries.

Sally Bergman agrees with this answer

Sally Bergman
Sally Bergman
Answered
  • Estate Planning Lawyer
  • San Mateo, CA
  • Licensed in California

A: Rarely is a standalone will better than a trust (which would include something called a pour over will), unless you have very few assets. All too often, I believe potential clients think they are saving money on attorney fees by asking for a will as they think a living trust will cost more. This might be true if you were simply having some very basic, simple documents prepared by a document preparer. However, when you retain a qualified estate planning attorney to prepare the documents, what you are paying them for is to elicit from you what your goals and needs are by asking many questions and carefully listening to you and then carefully crafting a plan that very specifically addresses all of your goals and needs. It's not often that it's a "one-size-fits-all" that works.

As well, in some states a will might be better than a living trust, but in California there are many specific reasons why the trust is better. For example, a living trust avoids lengthy and expensive probates and also prevents recovery of any potential Medi-Cal lien.

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