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Will vs. Trust in Plain English: Which One Do You Actually Need?

ByLDS Legal Journal Team

If you’ve ever wondered whether you need a will or a revocable living trust, you’re not alone. Both documents direct who inherits your property, yet they work in different ways at different times. In plain English: a will speaks only after death and generally goes through probate (a court-supervised process); a revocable living trust (RLT) operates during life and after death, can help avoid probate on the assets titled to it, and adds a layer of privacy and continuity if you become incapacitated. Those core distinctions drive cost, speed, and stress for your family. [ULC—Uniform Probate Code (overview); FINRA guidance; IRS FAQs]. Legal Information Institute+2FINRA+2

Title: Will vs. Trust in Plain English: Which One Do You Actually Need?
Author: LDS Legal Journal Team
Est Read: 8 minutes

The One-Page Answer

  • Choose a Will if: your estate is simple, you’re fine with a public court process, and you prefer the lowest upfront legal cost.
  • Choose a Revocable Living Trust if: you want privacy, faster transfers, probate avoidance for assets titled to the trust, and a smoother plan for incapacity without a court guardianship. Schwab Brokerage+1

Pro tip: Regardless of will or trust, beneficiary designations (on 401(k)s, IRAs, life insurance, some brokerage/bank accounts with TOD/POD) usually override your will—and often your trust—because those assets pass by contract. Keep these forms current. FINRA+1

What a Will Does and Doesn’t

A last will and testament:

  • Names who inherits assets that don’t pass by beneficiary form or joint title.
  • Appoints an executor to gather assets, pay debts/taxes, and distribute what’s left.
  • Nominate guardians for minor children.

Limits:

  • Probate is typically required for will-controlled assets, meaning a court filing, notices, waiting periods, and public records. The Uniform Probate Code (UPC) offers a modernized framework many states adopt in whole or part, but probate still takes time and costs money. Legal Information Institute
  • A will doesn’t control: retirement accounts, life insurance, or other non-probate assets with valid beneficiary designations (those transfer by contract). FINRA+1

What a Revocable Living Trust Does and Doesn’t

A revocable living trust (RLT):

  • You create it now, remain in control as trustee, and can amend or revoke it anytime while you’re competent.
  • You retitle assets (home, brokerage, certain bank accounts) into the trust; on death, the successor trustee distributes them without court probate.
  • If you’re incapacitated, your successor trustee can manage trust assets without a court guardianship.
  • Privacy: Unlike a probated will, an RLT administration is generally private.

Limits:

  • Upfront work: you must fund the trust—retitle assets and update beneficiary designations where appropriate—or you won’t get the probate-avoidance benefits.
  • No magic tax shield: An RLT is typically a “grantor” trust for income tax purposes; it does not by itself reduce estate or income taxes. Separate, advanced strategies (e.g., irrevocable trusts) address tax/asset-protection goals. Schwab Brokerage+1

The Probate Problem (and How Trusts, TOD, and Beneficiaries Bypass It)

Probate is the process a court uses to validate a will, appoint an executor, marshal assets, pay debts, and distribute what remains. Even in UPC jurisdictions with streamlined procedures, probate still introduces delay, cost, and publicity. An RLT, properly funded, largely sidesteps that for titled assets. Legal Information Institute+1

Other probate-avoidance tools:

  • TOD/POD designations on financial accounts (transfer-on-death/payable-on-death).
  • TOD deed (where available) for real estate via the Uniform Real Property Transfer on Death Act (URPTODA)—a recorded deed that names who takes the property at death, no probate required. Many states have enacted versions of this. Uniform Law Commission+2Uniform Law Commission+2

The Beneficiary Form That Beats Your Will (Most of the Time)

For retirement accounts and many financial assets, the beneficiary designation controls. Two big implications:

  1. Update after life events (marriage, divorce, births, deaths).
  2. Coordinate with your will/trust to avoid accidental disinheritance or forcing minors into court-supervised guardianships.

Regulators emphasize this point: FINRA explicitly warns that TOD/beneficiary documents supersede your will for those accounts. For ERISA-covered plans (e.g., many 401(k)s), federal law imposes spousal protections; a married participant usually needs spousal consent to name a non-spouse primary beneficiary. FINRA+2FINRA+2

Cost, Speed, Privacy: A Quick Comparison

Up-front cost: Will (lower) vs. RLT (higher, because you must draft and fund it).
Total lifetime cost: RLTs often save on back-end probate costs and time if properly funded.
Speed to your heirs: RLT (typically faster) vs. will (probate timelines vary by state).
Privacy: RLT (private) vs. will (probate filings are public). Schwab Brokerage+1

Incapacity Planning: The Blind Spot a Trust Can Fix

Your plan must work if you’re alive but not well. A will is silent on incapacity; you’ll still want financial and medical powers of attorney. An RLT adds continuity for assets titled to the trust, enabling your successor trustee to pay bills and manage investments without a court order. (You still need POAs for non-trust matters.) Schwab Brokerage

Taxes: Keep It Straight

  • A basic will vs. RLT choice does not change federal estate/income tax by itself.
  • The IRS has confirmed there’s no “clawback” for those who make large gifts under higher exemption amounts through 2025 if exemptions later drop—useful context for advanced planning, but separate from the will-vs-trust decision. Always coordinate with your CPA/estate counsel. IRS+1

Common Mistakes (and How to Avoid Them)

  1. Not funding the trust. A beautifully drafted RLT with assets still titled in your name will not avoid probate. Retitle and record as instructed. Schwab Brokerage
  2. Ignoring beneficiary forms. Old 401(k) designations (e.g., an ex-spouse) can defeat your will. Review annually and after life events. FINRA
  3. Naming minors directly. Consider a trust (inside your will or as part of your RLT) to control distributions and avoid court-supervised guardianship. Investopedia
  4. Overlooking real estate outside your home state. Use local counsel to coordinate title/recording; consider URPTODA (if enacted) or title into your RLT to avoid ancillary probate. Uniform Law Commission
  5. Assuming a trust is a tax shelter. Basic RLTs are primarily administrative tools; tax-driven results require separate irrevocable trust strategies. Cerity Partners

Decision Framework: “Will,” “Trust,” or “Both”

Use this quick rubric to choose:

Go Will-Only if you:

  • Have modest, in-state assets; are comfortable with a public court process; and want the lowest upfront legal fees.

Go RLT-Centered if you:

  • Want to avoid probate, value privacy, or own real estate in multiple states; or you anticipate incapacity and want smoother asset management.

Hybrid (Common):

  • Many people adopt an RLT for major assets, keep a pour-over will (a simple will that “catches” anything left outside the trust), plus updated beneficiary designations, financial/healthcare POAs, and living will/advance directive. Coordinate everything to match. Schwab Brokerage

Action Checklist

  • Draft core documents: Will (or pour-over will), Revocable Living Trust (if chosen), Financial POA, Health-Care POA, Advance Directive.
  • Fund your RLT: deed real estate, retitle non-retirement accounts as advised.
  • Review beneficiary designations (retirement, life insurance, bank/brokerage TOD/POD). Confirm they align with the plan. FINRA
  • Consider a TOD deed if available in your state. Uniform Law Commission
  • Revisit after marriage, divorce, births, deaths, moves, major asset changes (calendar reminder: every 12–24 months). FINRA

Bottom Line

You don’t pick a side so much as you pick a strategy. A will is a foundational document; a revocable living trust is a process upgrade—privacy, speed, incapacity coverage—if you’re willing to do the upfront work to fund it. Whichever route you take, align your beneficiary designations and consider state-specific tools like TOD deeds. That coordination—not the label on the document—is what makes an estate plan actually work.

State law governs wills, trusts, and real estate—terms, timelines, and fees vary. Always consult a licensed attorney in your state for personalized advice.

Category: Estate Planning; Wills; Trusts; Probate; Beneficiaries; Powers of Attorney; Elder Law; Tax Planning; Digital Assets; Guardianship

Sources & Authority

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