What is the difference between a will and a living trust?

As a lawyer, I can provide legal advice on the question of what is the difference between a will and a living trust. In general, both a will and a living trust are tools used to transfer assets upon death, but there are significant differences between the two.

A will is a legal document that details how a person's assets will be distributed upon their death. It names an executor to manage the estate, designates beneficiaries and outlines any specific bequests, such as charitable donations or gifts to family members. A will only takes effect after the death of the testator, and the executor must go through the probate process to distribute the assets.

Probate is a process whereby a court supervises the distribution of the assets of the deceased, making sure that creditors are paid and that property is distributed to the proper beneficiaries. Probate can be time-consuming and costly, which is one reason some people choose to create a living trust instead of a will.

A living trust is a legal entity that holds a person's assets while they are alive, and can distribute these assets upon death without going through probate. A living trust is created during the lifetime of the person, who may also serve as the trustee, managing the assets held in the trust. Upon their death, a successor trustee takes over management of the trust and distributes the assets to the beneficiaries named in the trust document.

There are several benefits to using a living trust over a will. First, as mentioned earlier, it can avoid the probate process, which can be time-consuming and expensive. Second, a living trust can provide more flexibility in managing assets during the lifetime of the person, as they can continue to make changes to the trust document as needed. Third, a living trust can provide privacy, as the details of the trust do not become part of the public record, as is the case with probate.

However, there are also some potential drawbacks to creating a living trust. It can be more expensive to set up a living trust than to create a will, and it requires more ongoing management to ensure that assets are properly titled and funded into the trust. Additionally, for certain types of assets, such as retirement accounts and life insurance policies, it may still be necessary to create a will to direct these assets to the trust.

In order to determine whether a will or a living trust is the best option, it is important to work with a qualified estate planning attorney who can provide specific advice based on the individual's circumstances and goals.