Using a Will Instead of a Revocable Trust

Colby & Thornes Estate Planning LawyersWhatever the size of your estate, you’ve worked hard for your money. It is therefore natural that you care deeply what happens to your assets when you die. At the same time, you are naturally concerned about your estate being consumed by taxes, administration costs, and other expenses.

Some people have a Last Will and Testament (Will) prepared to deal with these issues. But there are situations in which a revocable (living) trust may accomplish your goals more efficiently, with less cost and administrative expense, and with more protections than a Will can provide. If you are concerned about your estate, and how to deal with questions of distribution, taxes, probate and expenses, it is time to speak to an experienced Scottsdale estate planning lawyer to understand which alternatives make sense in your case.

At Colby & Thornes, we can help. We can advise you as to the best legal techniques to make sure that you minimize expenses and taxes, and at the same time, fulfill your wishes as to the disposition of assets upon your death.

What is a Last Will and Testament?

A Will is a written document that, in its simplest form, determines how your assets are to be distributed when you die.  You can change a Will at any time by adding a codicil, by revoking the Will, or by having a new Will prepared.  All Wills must be probated.

What is a Revocable (Living) Trust

There are many types of trusts. Here, we are speaking about a revocable (living) trust that holds some or all your assets, where you serve as your own trustee and have complete control of all trust assets while you are alive and competent, and which provides that there will be a new trustee substituted in your place in the event of your death or incapacity.  The Trust also directs the distribution of the assets upon your death and specifies the terms of distribution.

Wills vs. Revocable Trusts – Pros and Cons

There are advantages and disadvantages associated with various estate planning tools. An experienced estate planning attorney can tell you which will work best in your situation. The following are some of the relative advantages and disadvantages of using a revocable trust or a Will to deal with the disposition of your assets:

  • A revocable (living) trust is flexible. The nature of a revocable trust is such that it can be changed, or revoked, at any time. During your life, you are in complete control of all trust assets.
  • Since a revocable trust comes into existence during your lifetime (hence living trust), the trust can provide for the management of your assets in the case of your disability or incapacity; a will cannot do that. As we live longer, the changes of living beyond your ability to manage your affairs is a greater likelihood now that ever.
  • A Will must be probated; a revocable trust can avoid all probate.
  • The key to avoidance of probate with a revocable trust is to make sure that all assets (that are not beneficiary designation assets) are titled in the name of and owned by the revocable trust on your death.
  • Court intervention is not required when disposing of assets from a revocable trust, as opposed to the probate of a Will. Unlike a Will, a revocable trust is not a public record, and its terms are not available to the public. Trusts are private instruments, and if all the assets titled in the name of the trust upon death, no probate is required and, therefore, no public records are created about the estate administration.
  • While a revocable trust or a Will may be challenged by, for example, a disinherited child or other disgruntled heir, an experienced estate planning lawyer will properly establish the documentation necessary to avoid a successful challenge.
  • If you have minor children, your Will names your choice for a guardian. While that choice may or may not be enforceable (depending upon the availability of the other biological parent and, of course, the best interests of the child), the issue will ultimately be decided by the probate court. The other biological parent always has priority to become guardian unless he/she can be proven to be unfit in court.
  • If you have minor children, they cannot hold title to property. A Will that sets up a testamentary trust for a child, requiring a trustee until the child reaches a specified age and with specific rules of distribution to such child, is subject to the jurisdiction of the probate court during the administration of the testamentary trust.  Whereas, if a living trust is set up leaving assets on death to a minor child, in trust, such a trust administration is a private affair outside the purview, control and expense of the probate courts.

Trusts and Estates Attorneys in Scottsdale, AZ

Reading about trusts, wills, and similar matters will give you an idea of the types of estate planning tools that exist generally, the specifics of your case – the amount and nature of your assets, your age, your family situation, etc. – will determine which will be best suited to accomplish your goals both effectively and cost-efficiently.

At Colby & Thornes, we will analyze all the relevant factors, and use our decades of experience to provide a custom solution that works best for you. Call us to schedule an appointment.

Colby & Thornes is an Arizona Professional Limited Liability Company. The members of the company are David H. Colby and Megan A. Thornes. This website is intended to provide information about our practice and the legal services we offer. It is not intended to create, nor does it create, an attorney-client relationship. The website is informational only, and should not be relied upon as a substitute for legal advice from a licensed attorney at law.

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Colby & Thornes PLLC
Gainey Ranch Financial Center
7373 E. Doubletree Ranch Rd. Ste. 225 Scottsdale, Arizona 85258
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