Wills and Trusts Attorney Referral Service

What is the Difference Between a Will and a Trust?

Wills

A Will is a legal document which you prepare that determines what will happen to your assets after you die. Additionally, in a Will, you can name a guardian for any dependent you have. You will also indicate who you want to be the executor of your estate, or the person who will be in charge of managing your estate, distributing assets, filing tax returns on behalf of your estate, and handling claims from any creditors to your estate assets after your death.

It is important to make a Will, as dying without one often leaves loved ones in a complicated and sometimes challenging situation. Dying without a Will is also known as dying ‘intestate’. When this happens, California state law will kick in and determine how your assets will be distributed.

While Intestacy Law is designed to mimic what the legislature thought would be the decedent’s intent in distributing assets, this is not always the case. Having a Will properly written and executed by an estate planning attorney is the only way to ensure that your wishes for your personal, real, and other property will be carried out after you have passed on.

Trusts

In contrast, a Trust is a legal entity that lets you put conditions on how your assets, which are in the Trust, are distributed when you die. A Trust can also help minimize gift and estate taxes that will affect your estate and your loved ones upon receipt of anything from your estate after you have died.

There are two different kinds of Trusts. A Living Trust is set up during your lifetime, or a Testamentary Trust is set up in your Will and becomes effective after you die.

A Living Trust can be revocable or irrevocable. Basically, a Revocable Trust will allow you to retain control of all the assets in the Trust. As a result, you can revoke or change the Trust terms at any time. An Irrevocable Trust is one where the assets in the Trust are no longer yours. Additionally, you cannot make any changes to the Irrevocable Trust without the beneficiary’s consent.

It is important to note that a Trust does not replace a Will. A Trust typically only deals with certain assets like life insurance, a certain amount of money, or a particular piece of property. A Will addresses your entire estate, which is everything else you own. Most estates can be managed without a Trust being necessary, but it is important to have, as a minimum, a legal Will drawn up while you are still able to make your intentions clear.

Why would I need an estate planning attorney? What is the benefit?

California has its own laws on how Wills and Trusts need to be set up and executed. Oftentimes, these laws are complex and require legal knowledge in order for them to be understood properly.

An estate planning attorney will have attended law school, is licensed to practice law in California, and will also have had years of experience in drafting wills and assisting with the creation of trusts. Seeking the advice of a qualified estate planning attorney will ensure that your intentions for the distribution of your assets are clear and carried out accordingly.

Addressing every aspect of your estate is essential, and an estate planning lawyer will know the right questions to ask and the best way to structure your estate plan so that nothing is more complicated than it needs to be.

How do I choose a Will and Trust Attorney who is right for me?

It is essential that you find a Wills and Trusts attorney who has experience and knowledge in this particular field. Oftentimes, attorneys in the business of drafting Wills, creating Trusts, and giving other legal advice about someone’s estate, will have devoted their entire practice to estate planning. By securing an attorney whose practice has a focus on estate planning, you can be sure that your estate will be handled in the best way possible.

You should also ensure that you feel comfortable speaking to your attorney and sharing personal details about your life and finances. For an estate plan to be effective, it has to address all aspects of your estate, including uncomfortable ones, like any potential debts you may have upon your death. Contact us at 818-340-4529.