What is the Difference Between a Will and a Trust?

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By Eileen M.S. Nims, J.D

This is one of the most common questions I receive as an estate attorney. The quick answer is that a trust does not go through probate court and a will does. Probate is a process that requires the family of a deceased person to open a case in the court of the county where the deceased person lived. So for Molokai, the probate case gets filed in Maui County. The will gets deposited with the court together with the petition to open the case. The court will then approve the executor and will monitor the progress this executor makes for the duration of the probate process. Probate typically takes between one and two years. 

A trust is a document that allows assets to transfer from the deceased person to their beneficiaries without going through probate. The trust document designates a successor trustee who takes on the task of distributing all the assets that have been placed in trust, according to the instructions of the trust, to the beneficiaries. This can be done within a few weeks after the person who created the trust has passed. Basically, the trust is like a safe in which you put your assets, your home, your accounts and policies, and the successor trustee is the person who has the key to open the safe and has immediate access to the assets for distribution. 

So why do you need a will if you have a trust? The first limitation of a trust is that it can only hold assets. You cannot designate who takes care of your children or animals in a trust, because children and animals cannot be trust assets. So you need to make arrangements for them and that can only be done with a will. In the will you will specify who you want to take care of your children or animals to make sure they don’t end up in foster care or with a relative you would never choose. The second limitation of a trust is that it only contains those assets you have actively placed in it. So if you forgot to move an asset into the trust, that asset will go through probate without any instruction. A will drafted by an estate planning attorney provides the back-up plan for those assets you forgot to place into the trust, so they will still follow the same distribution you intended in the trust. An estate planning attorney can help you compile the necessary documentation and determine your estate director.

So if you want to make sure that the transfer of assets goes smoothly and expediently, you need a trust and if you want to make sure that the transfer of care of your children or animals goes smoothly and with the least amount of added trauma, you need a will. In other words, most families may hire an attorney to help with their estate plan. 

 

If you want to receive individualized legal advice with regards to wills, trusts or probate , please feel free to contact Eileen M.S. Nims, J.D. at eileen@nimsesq.com or by phone at (808) 664-1834.

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