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When most people think about estate planning, their first thought is usually "I need a will." And while having a will is certainly better than having no estate plan at all, many people don't realize that a will alone may not provide the level of protection and control they assume it does.
The truth is, wills and trusts offer dramatically different levels of protection for your assets and your loved ones. Here’s why a will might not be the all-encompassing solution you think it is. 👇
The Will is a Starting Point, Not a Finish Line
A will is essentially a set of instructions that tells the court how you want your assets distributed after you pass away. It's straightforward, and may seem like it should cover everything. However, this simplicity comes with significant limitations.
The Probate Problem
The most significant drawback of relying solely on a will is that it must go through probate—a court-supervised process of distributing your estate. Probate can be:
- Time-consuming: Often taking 6 months to 2 years or longer to complete
- Expensive: Court fees, attorney fees, and executor fees can consume 3-7% of your estate's value
- Public: Your will becomes a matter of public record, exposing your assets and beneficiaries to anyone who wants to look
- Stressful: Your loved ones must navigate complex legal procedures during an already difficult time
What a Will Can't Do
Beyond the probate process, wills have other limitations:
No incapacity protection: A will only takes effect after you die. If you become incapacitated due to illness or injury, a will provides no mechanism for managing your finances or healthcare decisions. You'd need separate documents like a power of attorney and healthcare directive.
Limited asset protection: Assets distributed through a will generally have no protection from your beneficiaries' creditors, lawsuits, or divorcing spouses. Once they inherit, those assets are vulnerable.
No privacy: As mentioned, wills become public record during probate, potentially exposing your family to unwanted attention or disputes.
Contestability: Wills can be relatively easy to challenge in court, potentially leading to family conflict and depleting estate assets through legal battles.
Trusts Have a Major Advantage
A living trust (also called a revocable living trust) addresses many of the shortcomings of a will-only approach. Here's how:
Avoiding Probate
Assets held in a properly funded trust pass directly to your beneficiaries without court involvement. This means:
- Faster distribution of assets (often within weeks rather than months or years)
- Lower overall costs
- Complete privacy—trusts don't become public record
- Less stress on your family during a difficult time
Protection During Incapacity
Unlike just having a will, a comprehensive trust-based estate plan includes crucial documents that protect you and your loved ones during incapacity. A thorough plan includes:
- A Durable Power of Attorney that allows your chosen agent to handle financial matters outside the trust, such as dealing with retirement accounts, insurance policies, or unexpected assets
- An Advance Healthcare Directive (Living Will) that documents your wishes regarding end-of-life care and medical treatments
Together, these documents ensure that someone you trust can manage both your financial affairs and healthcare decisions without requiring a court-appointed conservatorship or guardianship—an expensive, public, and often emotionally draining process for families.
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Greater Control
Trusts offer sophisticated control mechanisms that wills simply can't match:
- Conditional distributions: You can specify when and how beneficiaries receive assets (at certain ages, for education, etc.)
- Asset protection: Properly structured trusts can protect inheritances from beneficiaries' creditors, divorcing spouses, and poor financial decisions
- Special needs planning: Trusts can provide for disabled beneficiaries without jeopardizing government benefits
- Multi-generational planning: You can structure distributions across multiple generations
Harder to Contest
While no estate plan is completely contest-proof, trusts are generally more difficult to challenge than wills, reducing the likelihood of family disputes.
Common Misconceptions About Trusts
Despite these advantages, many people avoid trusts due to misunderstandings:
"Trusts are only for wealthy people." While trusts were once primarily used by the very wealthy, they now benefit everyday families at a reasonable price point—especially if you own a home or have retirement accounts.
"Trusts are too complicated and expensive." While trusts do require more upfront planning than a simple will, the long-term savings in probate costs and time often far exceed the initial investment.
"I'll lose control of my assets." With a revocable living trust, you maintain complete control during your lifetime. You can modify, revoke, or manage the trust as you see fit.
The Bottom Line
A will can be a powerful document, but for most families, it's not sufficient as a standalone estate plan. If you value privacy, want to avoid the time and expense of probate, need incapacity planning, or want greater control over how and when your assets are distributed, a trust-based estate plan is often worth it.
An Oath estate planning attorney can evaluate your specific situation, family dynamics, and goals. They can help you understand whether a will alone is sufficient or whether a trust would better serve your needs and protect your legacy.
Remember: estate planning isn't just about what happens after you're gone—it's about protecting your values, your assets, and your loved ones throughout your lifetime and beyond. Make sure your plan is up to the task.
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Disclaimer: This blogpost provides general information about estate and financial planning and is not intended as legal or financial advice. It’s essential to consult with a qualified estate planning attorney and financial advisor to discuss your specific needs and create a plan that’s right for you.
