What is the Difference between a Will and a Trust?

Wills and Trusts are similar in that both are legal vehicles for passing assets at death and can each be amended throughout the will or trust maker’s lifetime. However, many people do not understand the difference between a will and a trust. Wills must be submitted to the probate court and proved up (proven to be valid), and therefore require court supervision in order to pass the decedent’s assets to their beneficiaries. Further, a will is a death-time document and has no legal affect during the will maker’s incapacity.Revocable trusts on the other hand are living documents that can be designed to protect the trust Grantor while they are incapacitated from a conservatorship. Trusts also do not go through the probate process, they preserve privacy upon administration, and are typically far less costly in terms of trust administration vs. probate fees and costs.

The avoidance of a conservatorship over the estate of an incapacitated person is preferred. A properly drafted revocable trust can help the trust maker avoid a later conservatorship by assigning a Trustee to make financial decisions about the trust assets and to pay their bills and medical expenses if they are unable to. Conservatorships are expensive and require court supervision and accountings. They may also amount to someone you never envisioned being in charge of your financial affairs so it is best to designate a Trustee through a trust and have a power of attorney agent (which are often the same person or corporate fiduciary).

Wills are also subject to public inspection. This is not advantageous because of the lack of privacy. The whole world will be put on notice as to what assets you owned at death and to whom you left those assets. Another danger attendant of the will becoming public knowledge is that the executor could be approached by unscrupulous investment firms and taken advantage of. Trusts are private documents and afford the grantor a shield from the outside world’s prying eyes.

In California, a typical will probate can take from 12-24 months on average. This is because the court systems are over-crowded due to budget cuts. For example, in September of 2012, the North County San Diego Probate Court was closed and all probate matters were moved to the San Diego Central Probate Court in downtown San Diego. A simple trust administration can take 4-6 months. For larger estates that are complex (i.e., estates over $10MM), it could take longer but still usually less time than a probate.

Will probates also cost far more than the cost involved with a trust administration.  For example, a probate on a $1,000,000 estate would be over $47,000 for the probate statutory and filing fees. The fees on a probate case are calculated on the gross value of the estate not taking into account the debt against any of the property. Therefore, you could have a house that is worth $1,000,000 that has a loan against it for $800,000, yet the statutory % of fees are calculated on $1,000,000 not $200,000 of equity. Trust administration fees on the other hand are far less. They vary based on the complexity and size of the estate, but they are almost always less than the fees for a probate.