Should I do a Will or a Trust?Aug 08, 2022
This question comes up all of the time when it comes to estate planning. Unfortunately, many attorneys and other professionals try to cram and squish this very subjective square peg into an objective round hole with a sledgehammer. The fact is that there is no simple “one-size-fits-all” number answer to this question, no matter how tempting it might be to say "Unless your estate is above $X, you don't need a revocable living trust." However, there are several ways to help you reach YOUR conclusion depending on what is important to YOU:
- A Short Book: Read my 80-page book Estate Planning Basics, which covers the bare bones of estate planning, explained in plain English. This book is required reading for my legal clients before meeting with me about estate planning. By the time you are done with the book, you have a 90% chance (based on the clients I meet with) of knowing whether you want a Will or a Revocable Living Trust as the base of your estate plan. The book can be found here: https://www.amazon.com/dp/B098XY2HN3
- Do the Math: One of the main factors in people wishing for their estates to avoid probate is the administrative costs, including legal fees in getting an attorney to handle or assist in the process. Generally, probate eats up about 4-10% of an estate on average. If it’s all about the numbers for you, then if the projected probate costs exceed the cost of a revocable living trust, then a trust makes sense. If you think $40,000-$100,000 in probate and administrative costs is too much to pay for a $1 million estate, then avoiding probate is probably for you. However, I did once have a client with a $6 million projected estate who thought 4-10% was just “a cost of doing business” so he did a Will instead. A spreadsheet is posted below with the raw numbers.
- Strong Goals: Another factor, in fact the most important one, is how badly do you want to avoid probate for your estate? This isn’t a question thrown out in a vacuum about generic people. It is intensely personal. If you have been the executor or administrator of a complicated or drawn out estate, and you REALLY don’t want to risk leaving the same kind of mess to your executor, then avoiding probate may be a big goal for your estate planning. Making sure that the beneficiaries get their inheritance with as little fuss and cost as possible also leans towards a trust. However, I often have clients, especially those without children of their own, who are OK with the costs and delays of an estate going to nieces and nephews or other relatives. In the end, it comes down to your own personal experiences and desires.
The fact is that most of my clients came to my firm because they wanted to avoid probate for their estate, which means a revocable living trust. However, that doesn’t mean that there aren’t a lot of others who have a different viewpoint and went to see other attorneys. In the end, no matter how hard estate professionals try to pigeonhole an estate dollar amount as the definitive factor in whether or not they should use a trust to bypass probate, there is no such number for everyone and it comes down to what personal goals you have based on your particular estate situation.
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