If You Have a Trust, Do You Need a Will?

A trust is an essential estate planning tool that comes with many advantages. It can allow you to pass your assets to loved ones without going through probate and ensure the financial details of your estate remain private. A trust can also help reduce the potential for family conflict and allow you to remain in control over what happens to your property. While a trust can offer many advantages, you may be wondering, “do you need a will if you have a trust?”

What’s the Difference Between a Will and a Trust?

There are several crucial differences. They are two separate estate planning tools. While both direct how your assets should be distributed upon your passing, these mechanisms function in distinct ways. Specifically, a will goes through the lengthy and public probate process where it becomes part of the public record. A trust allows for assets to be distributed directly to the named beneficiary without requiring a legal proceeding.

If you have a small estate, a will may be all you need. Wills are not as complex to set up and less costly. However, it’s important to understand that a will only goes into effect upon your passing. A trust can be used to manage assets during your lifetime. It can also name a successor trustee who will handle your financial affairs in the event of incapacity. Unlike a will, a trust can also help to minimize the estate tax burden your loved ones may incur.

Is it Better to Have a Will or a Trust?

A comprehensive estate plan should include both (or several trusts, depending on your objectives). While trusts are powerful instruments that can offer many benefits, a will is the foundation of an estate plan. Specifically, a will can do the following things that a trust cannot do:

• Name an executor: A will can name a person of your choice to serve as the executor of your estate and manage the distribution of your assets.
• Designate a guardian for any minor children you have: Although a trust can hold a child’s inheritance, it cannot name a guardian for minor children. In a will, you can nominate a trusted person to serve as your child’s guardian in the event the unexpected occurs.
• Distribute assets not titled in the name of the trust: A will can direct how probate assets that are not titled in the name of the trust should be distributed.
• Specify your wishes for funeral and burial arrangements: A will can specify your last wishes regarding your funeral and burial arrangements or memorial service.

Wills and trusts can work together to ensure all of your assets go into the trust at the time of your passing. This is done by creating a “pour over will.” In addition, a will can be used to establish a “testamentary trust.” This type of trust only comes into existence upon your death. Although a testamentary trust does not avoid probate, it can control how distributions are made, protect your assets from creditors, and offer tax advantages.

Using a Pour Over Will with a Trust

If you use a pour over will in connection with a trust, you can ensure that any assets you left out of the trust will be “poured” into it. This serves as a crucial safety net so that any forgotten assets are not distributed in accordance with California intestate law, rather than your wishes. Although it does not avoid probate, a pour over will can also simplify the distribution of your assets and give you the peace of mind you need.

To create a pour over will, you would simply create a living trust and a separate pour over will. After the assets are in the trust upon your passing, they would be distributed by the trustee to the beneficiaries named in the trust instrument, along with the other assets titled in the name of the trust. However, whether you use a pour over will or a traditional will, certain legal requirements must be met in order for the instrument to be valid.

Under California law, a valid will must be in writing and signed by the testator. The person who created the will must be at least 18 years old and of sound mind. While a will does not need to be notarized, two witnesses must be present for the signing and sign the instrument in front of the testator.

Contact an Experienced California Trusts and Estates Attorney

If you are beginning the process of estate planning, it’s important to have a knowledgeable estate planning attorney by your side. They can explain the difference between a will and a trust, and advise you which tool should be used in your situation. The California trusts and estates attorneys at White and Bright are committed to assisting clients with creating comprehensive estate plans that will ensure their wishes are carried out. Contact us online or call (760) 747-3200 to schedule a consultation.