A common question posed by clients is, “what is the difference between a Last Will & Testament and Revocable Living Trust and which one would you recommend for me?”
A Will and a Trust are similar, in that both documents provide for how an individual’s assets are to be distributed when the individual passes away, but the manner in which this is accomplished is somewhat different.
Last Will & Testament
A Will is a document that is drafted, typically placed in a safe place, and only goes into effect when the person who created the Will passes away.
The Will designates an Executor of the Estate and provides direction for how the estate assets are to be distributed when the decedent passes away.
The Executor named in the Will is in charge of filing the Will with the Court, and a probate estate is opened, which is commonly referred to as the probate process.
The probate process in Wyoming generally consists of the following:
- The Will is filed with the Court.
- An Executor is appointed to administer the Estate.
- The Executor notifies the family members and beneficiaries of the Estate, and creditors of the Estate that the Decedent passed away.
- The Executor publishes a legal notice in the newspaper that the decedent passed away and that the Estate is being administered in the Court system.
- Creditors of the decedent then have approximately three months to file a claim against the estate for liabilities or debts owed.
- The Executor in is charge of gathering and taking care of the assets of the Estate.
- The Executor will file an inventory with the Court, identifying the assets of the Estate, will obtain appraisals, and provide values for the assets of the Estate.
- The Executor will file an accounting of the assets, income, receipts, expenses and disbursements of the estate in a Final Report and Accounting to the Court.
- The Executor will provide the Court with a proposed Distribution of the Estate, together with the payment of the expenses of the Estate.
- Once the Court considers and approves of the documents filed with the Court, the Executor will then be in charge of paying the claims and debts of the Estate and distributing the assets from the Estate to the named beneficiaries under the Will.
- Once the estate assets are distributed and debts are paid, the Executor will close the Estate.
- The probate process takes approximately six months to one year to complete, but it could take a longer period of time.
In the event that the Estate is less than $200,000, the Estate may be subject to an abbreviated probate process, or distribution through informal means via the filing of a sworn statement (Affidavit of Distribution) by the beneficiaries of the Estate. This is dependent upon a number of factors and the type of assets owned by the Estate.
In the event that the decedent left property in more than one state, the estate may be subject to multiple probate administrations in different states.
The potential downsides of a Will based estate plan, include:
- The estate may be subject to the probate process that can be lengthy and expensive.
- The legal fees and executor fees may be higher than with a Trust based estate administration.
- The probate process, Will, and information filed with the Court is of public record.
- The assets of the decedent may be frozen for a period of time, upon the death of the decedent, or during the probate administration.
- There may be appraisal fees, publication fees, or other costs that may otherwise not be required through a Trust administration.
- A probate administration may need to be opened up in more than one state, if there is property in different states.
The main benefits of a Will based estate plan, include:
- A Will is usually a little more simple and less expensive to set up.
- A Will may be more appropriate when a client has a small estate.
- Some people may feel more comfortable with, or have an easier time understanding, a Will.
Revocable Living Trust
A Revocable Living Trust is a document that is drafted and provides for the following:
- The Trust designates an initial trustee of the Trust, which is usually the client.
- The Trust designates a successor trustee who is in charge of the trust, in the event that the client passes away or becomes disabled.
- The Trust provides for how the trust assets will be administered during the life of the client and how the assets will be distributed to the beneficiaries upon the death of the client.
Upon the establishment of the Trust, the client will then need to transfer or retitle the assets owned by the client into the name of the Trust, with the assistance of an attorney, if needed. This is often referred to as the funding process. For instance, with regard to the client’s bank accounts, the client will need to contact the bank and have the accounts retitled from the client’s name (John Smith), to the name of the trust (the John Smith Living Trust, dated January 1, 2000). The client will do the same with investment accounts, real estate, or other assets owned by the client.
In the event the client becomes disabled, the successor trustee will be in charge of administering the trust assets, paying bills and expenses, and using the trust assets for the benefit of the disabled client.
In the event that the client passes away, the successor trustee will be in charge of distributing the trust assets to the designated beneficiaries or family members and paying the estate expenses. This is usually done without court involvement and can be less expensive and less time consuming than administering a Will through the probate process.
A married couple can have separate trusts or a joint trust. If the couple keeps separate accounts or their assets are separate, a separate trust may be more appropriate. If a couple commingles all of their assets, have been married for a long time, or do not have children from other relationships, then a joint trust may be more suitable.
The main benefits of a Trust based estate plan include:
- The trust can avoid a potentially lengthy and costly probate administration process, or multiple probate administrations.
- The trust assets can be distributed in a more timely manner to the designated beneficiaries of the estate/trust, than in probate court.
- The trust administration is not of public record and is private.
- The trust can help to minimize court costs, probate fees, executor fees and legal fees.
- The assets or accounts owned by the trust will not be frozen after the client passes away.
- The trust can provide a benefit in the event the client is disabled, as the successor trustee can manage the trust assets during the client’s disability, which may help to negate the need for a Conservator to be appointed by the Court to administer the client’s assets.
The main downsides to a Trust based estate plan include:
- The client will have to take a little time, with the help of the client’s attorney, to understand how the trust works, if the client is not familiar with trusts.
- Once the trust is established, the client has to transfer or retitle the assets into the trust.
- Sometimes a client may set up a trust and not go through the process of fully transferring the assets into the trust, or may forget to transfer an asset into the trust. In this situation, the client will have what is called a “Pour Over Will” which provides that the client’s assets not owned by the trust when the client passes away are to be distributed to the client’s trust. If there are just a few assets that were left out of the trust, or the assets do not have a high value (such as a car), the Trustee may be able to transfer the asset into the trust through a simple process of filing a sworn statement, called an Affidavit of Distribution. If there is real estate, or significant assets that are left out of the trust, then the assets may be subject to the probate administration process. Therefore, it is important to make sure that the trust is appropriately funded with the client’s assets.
- A trust may be a little more expensive to set up than a Will; however, the savings on the estate administration costs should outweigh the added cost of initially setting up the trust.
Each individual’s situation is a little different and the determination of whether a trust or will is more appropriate for the client and their family should be made on a case by case basis, after consulting with an attorney.
As a general rule a thumb, if the client does not have a significant amount of assets, a Will based estate plan may be more appropriate. If the client has real estate in different states, or a larger estate, then a trust may be more beneficial. With regard to a threshold value of when setting up a trust may be more beneficial, there is no general consensus on the value, but $200,000 may be a good benchmark, as that is the point in Wyoming where a decedent’s estate will likely be subject to a more formal probate process.
It is also important to keep in mind that setting up an estate plan is being done for the benefit of the client’s children and family members, and anything that can be done to make the process easier on the family and loved ones, especially during a time of grief, may be an important consideration for the client when deciding whether a Will or Trust is more beneficial.
Additional Estate Planning Documents
Also, as part of a Will based estate plan or Trust based estate plan, it is recommend that the client should put in place advance medical directives that provide direction regarding the client’s health care decisions, in the event the client is no longer capable of making his or her own decisions. These may include a:
- Health Care Power of Attorney designating an agent or family member who is in charge of making your decisions;
- Living Will which provides the client’s consent to let the client pass away, in the event the client is in a permanent vegetative state, or has no quality of life, with no likelihood of recovering; and,
- Health Insurance Portability And Accountability Act Authorization (HIPAA) form, allowing the client’s health care provider to release the client’s medical information to the designated individuals or family members.
In addition to the Health Care Documents, a Financial Power of Attorney is recommend, which provides an agent designated by the client with the authority to handle client’s financial affairs and pay the client’s expenses, in the event the client is no longer capable of doing so.