Winchester Estate Planning Attorneys Explain the Differences Between Trusts and Wills

September 15, 2023 – Matthew S. Akers & Douglas McCarthy

Establishing an estate plan is among the most significant steps you can take for your future. It’s a strategic move to protect your hard-earned assets, ensuring you and your loved ones benefit from them.

To help with this goal, two of the most prominent estate planning tools at your disposal are trusts and wills. While each has its own set of advantages and functions, there are significant differences between them that you should consider when deciding which option is right for you.

In this blog post, our Winchester estate planning attorneys will explain the differences between trusts and wills to help you make an informed decision.

If you would like to discuss creating a will or trust or would like us to review an existing one, contact us at (540) 722-2181 for a personalized consultation with a will and trust attorney. Let McCarthy & Akers go to work for you!

Why It Matters: Your Assets and Loved Ones

Your assets, whether your home, business, or personal belongings, represent a lifetime of hard work. Proper estate planning ensures that upon your passing, your loved ones don’t get burdened with the complexities of the legal system or the probate process.

By understanding the tools at your disposal, such as trusts and wills, you create a legacy that respects your wishes and eases the transition for your family.

Trusts vs. Wills

Trusts: More Than Just a Financial Instrument

Trusts are flexible tools used in estate planning to manage and protect your assets. A living trust, for instance, allows you to retain control over your assets during your lifetime.

Trusts prove particularly valuable if you become incapacitated or require long-term care. They allow for detailed instructions regarding your care and financial matters. Additionally, trusts can be instrumental in avoiding the lengthy and often costly probate process.

Wills: A Lasting Testament to Your Wishes

A will, also called a “testamentary will,” is a legal document stating your wishes for property distribution upon death. It’s a familiar concept to most people. By specifying beneficiaries, assets, and even designating guardians for minor children, a will ensures that your intentions are clear.

An executor, often chosen when you create your will, is responsible for carrying out its terms after your passing.

While creating a will might sound straightforward, the proper execution is essential. Hiring a competent estate planning attorney ensures that your will stands up in probate court should any disputes arise.

The Probate Process

The probate process is often a topic that arises when discussing wills. At its core, probate is the legal process of verifying a will in court. Once the will is validated, assets are distributed to beneficiaries, and debts are paid.

Many individuals want to avoid probate due to its reputation for being lengthy and potentially expensive. This is where the benefits of a trust come into play.

With assets placed in a trust, they are often excluded from the probate process, ensuring a faster and potentially smoother transfer to your beneficiaries.

However, if you solely rely on a will, understanding the probate process is essential. Your executor, the person you nominate in your will, plays a pivotal role here.

They’ll work closely, often alongside an estate attorney, to navigate the probate court, settle your debts, and distribute your assets as you’ve outlined in your will.

The Significance of Health Care Power and Living Wills

Outside of asset distribution, health decisions are a prominent part of estate planning. A living will, also known as an Advance Directive, is distinct from the testamentary will. The living will outlines your medical preferences should you become incapacitated and unable to communicate your wishes.

For example, decisions about life support if you were in a persistent vegetative state or preferences regarding long-term care can be articulated in a living will. It provides guidance and clarity for your loved ones during potentially challenging times.

Additionally, consider designating a health care power of attorney. This person will make health decisions on your behalf if you cannot.

Choose someone you trust, someone who understands your values and wishes. It’s one more step in ensuring that your preferences are respected and executed even in unpredictable situations.

Understanding Living Trusts and Their Benefits

Living trusts have gained popularity as efficient tools in estate planning. A trust is a separate entity that holds and manages your assets. While you’re alive, you can serve as the trustee and maintain control over all assets within the trust.

After your death, a successor trustee of your choosing manages and distributes assets to beneficiaries based on your stipulated guidelines.

One of the most compelling benefits of a living trust is the potential to avoid probate. Assets within a trust bypass the probate process, leading to quicker and often less complicated distribution to beneficiaries.

Moreover, unlike wills, which become public record once submitted to probate court, trusts offer a layer of privacy, as the details aren’t easily accessible to the public.

However, setting up a living trust involves a more complex process than drafting a will. It requires transferring property titles and assets to the trust, often referred to as “funding the trust.” Winchester estate planning attorneys can guide you through this process, ensuring all steps are correctly completed.

Cost Implications: Flat Fee vs. Hourly Rates

When hiring Winchester estate planning attorneys, you may encounter different cost structures. Some attorneys might offer a flat fee, especially for straightforward estate planning tasks like writing a will.

Others might charge hourly rates, particularly for more involved processes, such as setting up complex trusts. Discussing cost estimates during your initial consultation is beneficial, ensuring you’re comfortable telling your attorney about your specific needs and financial situation.

The Importance of Reviewing and Updating Wills and Trusts

Estate planning isn’t a one-time event but an evolving process. Just as your life changes — be it through new family members, fluctuating financial circumstances, or alterations in your wishes — so should your estate plan reflect these transitions.

We recommend setting a regular schedule to sit down with your estate planning attorney, perhaps annually or every other year. Together, you can review and, if necessary, revise your documents to ensure they accurately reflect your wishes and life’s reality.

Remember, a will or trust that’s created and forgotten might not serve its intended purpose when the time comes. Make your estate plan a living document, continually molded to fit your evolving life and legacy.

Comparing Wills and Trusts: Key Differences at a Glance

 

Wills Trusts
Definition A legal document that states how your assets should be distributed after your death. A fiduciary relationship where one party, the trustor, gives another party, the trustee, the right to hold and manage property or assets for the benefit of a third party.
When It Takes Effect Only after death Can take effect as soon as it’s created and assets are transferred into it.
Probate Typically goes through probate. This can be time-consuming and costly. Designed to avoid probate. Beneficiaries can often access assets more quickly.
Privacy Becomes public record once it goes through probate. Remains private. Details of the trust aren’t easily accessible to the public.
Type Testamentary Will: Standard will that takes effect after death.

Living Will: Indicates medical preferences in incapacitation scenarios.

Revocable Living Trust: Can be altered during the trustor’s lifetime.

Irrevocable Trust: Once established, can’t be changed without the permission of the beneficiary.

Cost Generally less expensive to create. However, potential probate costs can be high. More costly upfront but can save money in the long run by avoiding probate.
Incapacity Planning Does not address incapacity. A separate document like a durable power of attorney is needed. Can include incapacity planning. If you become incapacitated, the successor trustee can manage the trust assets without court intervention.
Control After Death Direct distribution of assets based on the will’s instructions after death. Can provide detailed instructions on asset management and distribution, both during the trustor’s life (if incapacitated) and after death.

Deciding between a will and a trust—or determining if you need both—depends on your specific needs, assets, and goals. For many, a combination of both offers the greatest benefits and peace of mind. Consulting with a Winchester estate planning attorney can help you make an informed decision tailored to your unique circumstances.

Trust Your Legacy with Estate Planning Attorneys McCarthy & Akers

The future is uncertain, but your legacy doesn’t have to be. Navigate the world of wills and trusts with the guidance of McCarthy & Akers. Our seasoned team recognizes the pivotal role of clear, well-drafted wills and trusts in safeguarding your assets and ensuring they benefit those you cherish most.

Whether establishing your first trust or revising an existing will, our experienced team is here to steer you clear of pitfalls and ensure your directives are honored. There’s no need to search online for “will and trust attorneys near me” or “estate planning attorneys near me.”

Instead, contact us to schedule a consultation at (540) 722-2181 or connect with us online. Our offices, spanning Strasburg, Front Royal, Winchester, and  Manassas, are ready to welcome you. Prioritize your family’s well-being and protect your financial future. Let us go to work for you!

And before you go, grab our exclusive guide, “3 Most Common Threats to Your Estate and Your Family’s Future.” Download your copy here.

Copyright © 2023. McCarthy & Akers, PLC. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

McCarthy & Akers, PLC
302 W Boscawen St.
Winchester, VA 22601
(540) 722-2181
https://mccarthyakers.com/

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