Estate Planning Worksheet

Difference between a Living Will & Trust

The purpose of both a living trust and a will is to facilitate the transfer of property to heirs.

Whether clients choose a living trust or a will as their estate planning tool depends on their individual circumstances. They are both viable options, but it is incumbent upon the attorney to explain the differences and ensure clients understand how the different choices may affect them. For example, in cases where a home or other asset is used as collateral for a bail bond, clients need to understand that a bondsman will place a lien on the property. If the asset is already in a trust, how that trust is held will determine whether it is possible to do so.

Revocable Trusts

The grantor retains control of his assets and can change his mind about whatever he has put into a revocable trust by revising it. He is able to do that by completing an amendment form found online or in a bookstore, listing the changes he wants to make, having it notarized, and attaching it to the original document. After the original trust has been prepared, it is not necessary to have an attorney make these simple changes.

Irrevocable Trusts

An irrevocable trust is more involved than the revocable trust, and it is more difficult to make changes. Because laws vary from state to state, the client needs the service of an attorney who specializes in trusts and wills. Assets are transferred to others (trustees), and the grantor no longer controls them; therefore, he cannot make any changes.

They both protect assets, but the irrevocable trust has the additional feature of protecting assets from estate taxes, as well as protection from creditors or judgments. In addition, with the irrevocable trust, a person will not have to deplete assets to pay for elder care later in life and may qualify for government assistance to pay for those services.


Wills have some of the same features of a revocable trust, such as the ability of clients to name their beneficiaries and to make changes. Where a trust is more specific, a will encompasses all holdings owned by the client. It allows some leeway if he fails to include items in the trust that are intended for it, protecting them from probate.

A basic will takes into account the wishes of the client when he dies, especially who controls his or her property and who raises the children. If he does not, the state will make that determination. It can be amended at any time. While it differs from a trust in some respects, a person can have both. Wills must go through probate, which may take six months to a year and charge the estate 3 to 5 percent in fees. Until probate is settled, beneficiaries will have to do without any proceeds from the holdings. A basic will may be adequate for those who are young, healthy, and do not have enough wealth to worry about paying estate taxes. However, if they are wealthy or other circumstances require a more judicious plan, they need the protection of a well-executed will.

Having a knowledgeable estate attorney is crucial for wealthy persons and for those who will only feel comfortable in the hands of someone experienced in the practice. Some people try to avoid attorney fees by using online forms for wills and trusts. They should be aware that these services cannot offer legal advice and that their expectations may not actually be met. Of course, it is their families who will suffer the consequences of these choices. It is worth it to pay for a legal voice so that their interests can be legally represented when the time comes.

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