wills-vs-revocable-living-trusts — estate and legacy planning

Estate planning requires choosing the right legal instruments to transfer assets to beneficiaries. Two primary options exist for most individuals: a last will and testament or a revocable living trust. Each serves the fundamental purpose of directing asset distribution after death, but they operate through different legal mechanisms with distinct implications for cost, privacy, timing, and control.

Last Will and Testament

A will is a legal document that specifies how a person's assets should be distributed after death. It takes effect only upon death and must go through probate, the court-supervised process of validating the will and overseeing asset distribution.

Key characteristics of wills:

Relatively simple and inexpensive to create (typically $300-$1,500 for attorney-drafted wills)
Can name guardians for minor children
Becomes a public record once filed with the probate court
Only controls assets titled in the deceased person's individual name
Can be modified or revoked at any time during the creator's lifetime
Has no effect during the creator's lifetime or incapacity

A will must meet state-specific requirements to be valid. Most states require the document to be in writing, signed by the testator (the person making the will), and witnessed by at least two individuals who are not beneficiaries.

Revocable Living Trust

A revocable living trust is a legal entity created during a person's lifetime to hold and manage assets. The person creating the trust (the grantor) typically serves as the initial trustee and retains full control over trust assets. Upon the grantor's death or incapacity, a successor trustee takes over management and distribution according to the trust's terms.

Key characteristics of revocable living trusts:

More complex and expensive to create (typically $1,500-$5,000 for attorney-drafted trusts)
Avoids probate for assets properly funded into the trust
Remains private; trust terms are not filed with any court
Provides for management during incapacity
Requires ongoing maintenance (funding new assets into the trust)
Can be modified or revoked at any time during the grantor's lifetime

Creating the trust document is only the first step. The trust must be "funded" by retitling assets in the name of the trust. An unfunded trust provides no probate avoidance benefit.

The Probate Process

Probate is the legal process through which a court validates a will, appoints an executor, identifies and inventories assets, pays debts and taxes, and distributes remaining assets to beneficiaries.

Probate costs vary by state but typically include:

Court filing fees: $50-$1,200
Executor fees: Often 2-4% of estate value
Attorney fees: 2-5% of estate value in many states
Appraisal and accounting fees: Variable

Total probate costs commonly range from 3% to 7% of the estate's value, though some states have fixed fee schedules or allow reasonable hourly billing.

Probate timeline:

Simple estates with no disputes: 6-9 months
Moderate estates: 9-12 months
Complex estates or those with disputes: 12-24 months or longer

During probate, certain assets may be frozen or restricted, potentially creating liquidity challenges for beneficiaries.

Probate Avoidance and Privacy

Assets held in a revocable living trust pass directly to beneficiaries according to the trust terms without court involvement. This provides two significant benefits:

Speed: Successor trustees can typically begin distributing assets within weeks of the grantor's death, compared to months or years for probated estates.

Privacy: Trust terms remain private. With a will, the document itself, asset inventory, and distribution details become part of the public court record. Anyone can access this information.

However, a revocable living trust does not avoid all court proceedings. If the trust's validity is challenged, or if disputes arise among beneficiaries, litigation may still occur.

Incapacity Planning

A will provides no protection during incapacity because it only takes effect at death. If a person becomes incapacitated without other planning documents, a court-supervised guardianship or conservatorship may be required to manage their affairs.

A revocable living trust addresses incapacity directly. The trust document specifies who becomes successor trustee if the grantor becomes unable to manage their own affairs. This successor trustee can immediately step in to manage trust assets without court involvement.

The trust document should define the criteria for determining incapacity, such as written statements from one or two physicians.

Worked Example: $1.5 Million Estate

Consider an individual with the following assets:

Primary residence: $650,000
Investment accounts: $500,000
Retirement accounts (IRA and 401(k)): $300,000
Bank accounts: $50,000

Total estate: $1,500,000

Note: Retirement accounts pass by beneficiary designation, not through either a will or trust. The $1,200,000 in non-retirement assets are subject to probate or trust distribution.

Path A: Will Only

Estimated probate costs:

Court filing fees: $400
Executor fees (3% of probatable estate): $36,000
Attorney fees (3% of probatable estate): $36,000
Miscellaneous costs: $2,000

Total estimated cost: $74,400 (6.2% of probatable estate)

Timeline: 9-12 months before beneficiaries receive full distribution

Privacy: Complete asset inventory and distribution details become public record

Path B: Revocable Living Trust

Upfront costs:

Trust creation (attorney fees): $3,500
Deed preparation and recording (for residence): $500
Account retitling time and effort: Minimal cost

Total upfront cost: $4,000

Ongoing costs:

Periodic trust review and updates: $500-$1,000 every few years
Funding new assets into trust: Minimal ongoing effort

Distribution timeline: 2-6 weeks for most assets

Privacy: Trust terms and asset details remain private

Cost Comparison

The trust saves approximately $70,000 in probate costs on a $1.5 million estate, even after accounting for higher upfront creation costs. The break-even point for trust creation typically occurs with estates valued between $100,000 and $300,000, depending on state probate costs.

When a Will May Be Sufficient

A will may be the appropriate choice when:

The estate is relatively small (under $100,000-$200,000 in probatable assets)
Most assets pass outside probate through beneficiary designations or joint ownership
The estate owner lives in a state with simplified probate procedures for small estates
Cost minimization is the primary concern and privacy is not important

When a Revocable Living Trust Is Advisable

A revocable living trust may be preferable when:

The estate includes real property in multiple states (avoiding ancillary probate)
Privacy regarding assets and distribution is important
The estate owner wants to provide for seamless management during potential incapacity
The estate is large enough that probate cost savings justify trust creation expenses
Beneficiaries would benefit from faster access to assets

Pour-Over Will

Most estate plans that include a revocable living trust also include a "pour-over will." This will directs any assets not already in the trust at death to be transferred ("poured over") into the trust. These assets still go through probate, but they ultimately distribute according to the trust's terms rather than intestacy laws.

Wills vs Revocable Living Trusts