Wills and trusts are among the most important estate planning documents available. Both are effective at naming beneficiaries and transferring property, but that’s not all they are useful for. With wills and trusts, estate owners can grant authority to certain people, resolve major concerns like guardianship and ensure final wishes are carried out. While wills and trusts don’t cover everything, they do cover many important things and are the foundation of any estate planning approach.

How wills and trusts help transfer property


Though there is some overlap between wills and trusts, many people are best served by opting for both. This may not make sense at first glance – after all, don’t wills and trusts both ensure property is transferred to the proper beneficiaries? The answer to that is yes, they do, but not in the same way. Here’s what that means:

  1. Wills – A will should address most, if not all, aspects of estate planning. This includes issues separate from property concerns.When it comes to transferring property, wills have one major advantage over trusts. Specifically, wills can address almost any type of property, and that property does not have to be put into a special account to ensure it is transferred. All the estate owner has to do is name the property and name the beneficiary. There’s a little more to it than that, but wills are the only practical option for handling a lot of property with several beneficiaries.There are, however, some things to consider before making a will your primary means of transferring property. A will only goes into effect upon death, so it holds no power while the estate owner is alive. This can be a problem if the estate owner suffers an accident or mental decline that makes it impossible for them to manage their affairs. Although it’s somewhat rare for a will to be legally challenged, a jilted family member may argue that the will was created after the estate owner could no longer properly handle their affairs.Since wills are only executed upon death, they can’t be used to specify how the estate owner should be taken care of should they become incapacitated. This can put a family in a challenging position if they need to attain control of the estate owner’s finances, which may be necessary to pay for medical expenses. This is a public, potentially emotionally painful process, and should be accounted for outside of a will.


    Finally, everything named in a will must go through probate. Probate is the court-organized process of naming and officially bequeathing assets left behind by the estate owner. Probate can be a time-consuming and expensive process, often taking between five and ten percent of the estate’s value. Probate is also public, which may be an issue for some.

  2. Trusts – In the majority of cases, estate planning attorneys use the term “trusts” when they mean revocable living trusts. There are other trusts relevant to estate planning, but revocable living trusts are the most common.Living trusts are designed for handling property, and not much else. The person who organizes the trust and puts property into it is the grantor, while the person responsible for maintaining the trust and transferring it to the beneficiary is the trustee. In most cases, the grantor and trustee are the same person, so the grantor will usually name a successor trustee that will take over once the grantor passes away.There are several advantages to a living trust that makes it a compelling companion to a will. Perhaps the biggest one is that any property placed in a trust does not pass through probate. Instead, the property is transferred to the beneficiary once certain conditions are met. A trust, for example, may trigger once the grantor dies, but other conditions may be placed on the trust. For instance, the trust may only be transferred once the beneficiary is of a certain age, or only if they attend college. There are limits here, but grantors can be creative in how they transfer property to their beneficiaries. 

    Because trusts do not pass through probate, they can be delivered in a matter of weeks (if not sooner), rather than the months or years it often takes probate to resolve. The property in the trust is not used to pay for probate, so it’s an effective way to preserve the estate’s value for loved ones.

    Trusts are also kept out of the public eye and afford the beneficiary privacy, which may be an important consideration if there is infighting among surviving family members. Further, trusts are more difficult to challenge in court, as the assumption is that the grantor must have been mentally fit to establish and organize a trust. If there is likely to be conflict between family members during probate, a living trust allows the estate owner to sidestep it to transfer property directly to the beneficiary.

    Finally, a living trust helps a grantor avoid a conservatorship. Should the grantor be incapacitated for some reason, control of the trust will pass to whoever the grantor named. The trust can then be used by someone the grantor trusts to handle medical and living expenses.

 Why you need a will and a trust


It may seem like a living trust precludes the need for a will and is the better property-transferring mechanism in every way. Consider first, though, that trusts must be funded by property placed in the trust, and it’s not practical to place all of the estate’s property into various trusts. At some point, a will must be the final say for some property and some beneficiaries.

Estate planning is not just about property and beneficiaries. Wills and trusts both handle this issue well, but a will serves a larger role in delivering an estate owner’s wishes, while trusts are only for handling property. Consider what else a will can do:


  1. Name guardians for minor children – As important as it is to pass the estate on, determining who will care for surviving children is critical. A will allows the estate owner to name a guardian, or guardians, for minor children, and failing to specify this may leave the decision up to the court.
  2. Provide directions on managing debt and creditors – If estate taxes or debts will be paid out from the estate, a will allows the estate owner to dictate how those taxes and debts are paid. This will protect property intended for beneficiaries and ensure creditors do not become a problem for surviving family members.
  3. Name an executor – The executor is responsible for carrying out the will and is typically seen as the estate owner’s surviving representative. There are often a lot of questions and concerns regarding what to do when an estate owner passes away, and having an executor ensures everything proceeds according to the estate owner’s plan.
  4. Handle the fine details – A will can also resolve other issues that may be of importance to the estate owner. For example, a will can specify who will take care of any pets and be used to forgive any debts still owed to the estate owner.

Living trusts cannot be used for any of the above, so while there is considerable overlap between wills and trusts, they are both needed to cover all estate planning aspects. Fortunately, estate planning attorneys are experts at putting together wills and trusts, and ensuring their client’s wishes are carried out.