DO YOU NEED A WILL
IF YOU HAVE A TRUST?

DO YOU NEED A WILL IF YOU HAVE A TRUST?​

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YES

 

A Trust and a Will serve different purposes and often work together to ensure that your assets are distributed according to your wishes. A Trust is an important estate planning tool, but it is rarely a complete substitute for a Will.​

 

A properly drafted Will can:​​

 

• Direct assets into your trust after death;

• Address assets that were not transferred to the trust during your lifetime;

• Nominate a guardian for minor children;

• Nominate a Personal Representative;

• Help ensure that your estate plan functions as intended.​

 

PURPOSE OF A REVOCABLE TRUST​

 

A Revocable Living Trust is a legal arrangement that allows you to manage assets during your lifetime and provide instructions regarding those assets after your death. 

 

Revocable Trusts:​

 

• Avoid probate;

• Maintain privacy;

• Simplify administration;

• Provide ongoing management for beneficiaries;

• Plan for incapacity. 

 

Assets properly titled in the name of the trust generally pass according to the terms of the trust agreement rather than through probate.​

 

WHY ISN'T THE TRUST ENOUGH?​

 

Because not every asset automatically becomes part of the trust.​

 

Many people create a trust but never transfer all of their assets into it.​

 

Examples may include:​

 

• Bank accounts;

• Newly acquired real estate;

• Vehicles;Business interests;

• Personal property.

 

If an asset remains outside the trust at death, additional planning may be necessary.This is where a Will becomes important.

 

WHAT IS A POUR-OVER WILL?

 

Most trust-based estate plans include a document known as a Pour-Over Will.

 

A Pour-Over Will directs assets that remain outside the trust at death into the trust.

 

Example​

 

Mary creates a Revocable Living Trust.

She transfers her home and investment accounts into the trust.

Several years later, she opens a new bank account but forgets to title it in the trust's name.

When Mary dies, the account remains outside the trust.

 

A properly drafted Pour-Over Will can direct that asset into the trust so that it is ultimately distributed according to the trust's terms.

 

GUARDIANS FOR MINOR CHILDREN

 

A trust cannot nominate a guardian for minor children.

 

Only a Will can formally nominate the person you would like the court to consider as guardian if both parents die while the children are minors.

 

For parents of young children, this is one of the most important reasons to have a Will.

 

DOES A TRUST AUTOMATICALLY ELIMINATE PROBATE?

 

Not necessarily.

 

A trust can help avoid probate for assets properly titled in the trust's name.

 

However, assets that remain outside the trust may still require probate administration.

 

The effectiveness of a trust often depends upon proper trust funding.

 

Common Funding Mistakes:​

 

• Real estate never transferred to the trust;

• New accounts opened outside the trust;

• Business interests not assigned to the trust;

• Beneficiary designations not coordinated with the plan.

 

These issues can undermine many of the intended benefits of the trust.

 

WHAT HAPPENS IF YOU HAVE A TRUST BUT NO WILL?

 

The result depends upon the circumstances.

 

Potential issues include:

 

• ​Assets outside the trust passing through intestate succession;

• Additional probate complications;

• Uncertainty regarding guardianship nominations;

• Increased administrative costs.

 

A Will serves as an important safety net for many trust-based plans.​​​

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