Difference Between a Will, Trust

Q. What is the difference between a will and a trust? Some of my friends seem to use the terms to mean the same thing?

By Gene L. Osofsky, Esq. SPECIAL TO THE FORUM

A. Yes, many people do use the terms interchangeably, but in reality they are quite different, although they often work together to form a complete estate plan.

A will is a document that directs who will receive your assets at your death and only goes into effect upon your death and then only in the context of a court proceeding, called a probate. By contrast, a trust takes effect as soon as you create it, continues in effect after your death and until trust assets are distributed to your beneficiaries, and usually does not require court supervision.

A trust is a legal arrangement by which one person, called a “trustee”, holds legal title to property for the benefit of another person (initially, for yourself, and later for your beneficiaries). The initial trustees would typically be you and your spouse, and the successors would typically be your child(ren) in the order you designate. As initial “trustees”, you and your spouse would continue to control and manage your assets as before, but as “trustees” of your own trust.

A will only covers assets that are in your name when you die. A trust, on the other hand, only covers property that has been transferred into the trust, usual- ly by re-titling assets into the names of the trustee(s), such as by a new deed. Exam- ple: From John & Mary Jones, husband and wife, to John & Mary Jones, Trustees of the Jones Family Trust.

Note: Neither a will nor a trust control assets held in joint tenancy, insurance policies payable to individual beneficiaries, nor financial accounts designated as “Pay on Death” or “Transfer on Death” accounts. Succession to these assets is controlled by the names on the accounts: they go to the surviving joint tenant or to the designated beneficiaries named on the accounts, and are not controlled by either a will or a trust. This often comes as a surprise to clients.

Typically, trust administration would be handled with the assistance of an attorney, but the legal fees would usually be less than a formal probate.

Finally, a will becomes part of the public record and is therefore available for anyone to view, while a trust usually remains private.

Wills and trusts each have their advantages and disadvantages. For example, a will allows you to name a guardian for minor children and to specify funeral arrangements, while a trust does not. On the other hand, a trust can be used to plan for disability during your lifetime and for asset management by your successor trustee if doing so becomes too burdensome for you.

Unfortunately, many people who set up trusts neglect to transfer all of their assets into the trust. That is where a companion will can help: the companion will, often called a “pour over” will, can direct that assets inadvertently left out of the trust be transferred into the trust after your death in order to achieve a coordinated plan of disposition.

Gene L. Osofsky is an elder law and estate planning attorney who has been helping East Bay families for over 30 years. Visit his website at www. LawyerForSeniors.com

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