Blog: Trust versus Will—What are they and which is best for you?
INTRODUCTION
Trusts and wills are similar, but they do have key differences. Without either a will or trust, after your death your assets will be distributed according to the intestacy laws of your state. The way your assets are then distributed may be against your wishes or harder for your family. These laws prioritize spouses, children, and blood relatives—and may exclude friends, stepchildren, or charitable causes you care about. Understanding what wills and trusts are, and understanding their differences, can help you plan better for your future.
WHAT IS A WILL?
A will is a legal document that describes your wishes for the distribution of your assets and the management of your affairs after your death. Your will ensures that your wishes are followed and that the state won’t determine the distribution of your assets.
A will allows you to:
Name guardians of any minor children you may have;
Specify who the beneficiaries are (the people receiving your property); and
Designate the executor, who will carry out the instructions in your will.
Legal Note: To be valid, a will generally must be signed by the testator (the person making the will) and witnessed by at least two disinterested parties. Some states allow for holographic wills (handwritten) or notarized wills, but requirements vary.
TYPES OF WILLS
There are many types of wills. The four most common categories are simple wills, testamentary trust wills, living wills, and joint wills. Each category can be tailored to a person’s unique situation and estate goals.
Simple Will
This type of will is the most basic and most common. It is best suited for people who have straightforward estates and clear wishes for the distribution of assets.
Example: A parent with one adult child and no real estate might use a simple will to leave everything to that child and name them executor.
Testamentary Trust Will
This type of will creates a trust that becomes active after the testator's (maker of the will) death. It is often used to manage assets for:
Minor children,
Beneficiaries with special needs, or
Individuals who may not be ready to manage large inheritances.
Legal Insight: While the trust delays distribution and adds oversight, it is still subject to probate court since it originates from the will.
Living Will
This document makes clear the testator’s preferences for medical treatment if they become incapacitated. A living will is commonly paired with a healthcare power of attorney, which appoints someone to make medical decisions on your behalf.
Note: This is not a will in the traditional asset-transfer sense, but rather an advance directive governed by state-specific health statutes.
Joint Will
This document is made by two people, most commonly spouses, and describes how their combined assets will be distributed. Usually, it states that:
The surviving spouse inherits everything, and
Upon the second death, assets go to agreed-upon beneficiaries.
Legal Consideration: Joint wills can be binding after the first death, which may limit the survivor’s ability to make changes even if circumstances evolve.
WHAT IS A TRUST?
A trust is a legal arrangement in which a person (called the grantor or settlor) transfers property into the trust, to be managed by a trustee for the benefit of beneficiaries. The terms of the trust are outlined in a trust document, and the trustee has a fiduciary duty to follow those terms.
Trusts serve many purposes, such as:
Avoiding probate, since assets in a trust pass outside of the court process,
Protecting assets from lawsuits or creditors, especially with irrevocable trusts,
Reducing taxes, such as estate or gift taxes, depending on how the trust is structured,
Maintaining eligibility for government benefits (e.g., with a special needs trust),
Controlling distributions based on milestones, such as a beneficiary’s age or education,
Supporting charitable giving through charitable trusts or family foundations.
Types of Trusts:
Revocable Living Trusts – Can be changed or revoked during the grantor’s lifetime. Assets pass outside of probate but remain in the grantor’s taxable estate.
Irrevocable Trusts – Cannot easily be altered. These provide strong asset protection and estate tax advantages.
Special Needs Trusts – Ensure ongoing care for a disabled individual without affecting public benefits like Medicaid or SSI.
Charitable Trusts – Used to donate to causes while retaining income or tax benefits for the donor.
Conclusion
A will only becomes effective after death and is subject to probate.
A trust can be used during life and after death and may avoid probate entirely.
Each tool has specific advantages depending on the size and complexity of your estate, your privacy concerns, and your goals for asset protection or tax planning.
HOW JENNRICH LAW CAN HELP
Estate planning can feel overwhelming, but you don’t have to navigate it alone. At Jennrich Law, we’re committed to helping individuals and families make informed, confident decisions about their futures. Whether you need a simple will, a comprehensive trust-based plan, or guidance on complex estate tax issues, our team will take the time to understand your unique situation and create a customized plan that protects your assets and honors your wishes.
We offer:
Personalized estate planning consultations
Drafting and review of wills, trusts, and advance directives
Probate and estate administration support
Trust funding and trustee guidance
Special needs and charitable trust planning
