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  14. Adult Protective Services (APS) Program Benefits from Shamrock Shindig
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Wills vs. Trusts

October 23, 2017

By: Kerry R. Peck, Esq., Managing Partner of Peck Ritchey, LLC

Contributing Author: Lori Probasco, Law Clerk



Have you ever thought about how your property will be passed onto your loved ones after you pass? When you are making these plans, you need to know that there are typically two instruments that are used to dictate how your property will be distributed: a will and a trust. When deciding whether to use a will, a trust, or both, there are many factors that should be taken into account.


What is a Will?

A will is a document that indicates to the probate court how you would like your estate handled after death. It allows you to name beneficiaries and direct what property is to be distributed to them. Through the will, you can also appoint a guardian to take care of minor children, nominate executors to carry out the wishes of the will, and give instructions as to memorial and funeral services. To create a will you must be of sound mind, meaning you must understand what property you have, the effect of the will, and who the beneficiaries of the will are. The will must be signed by you and two witnesses who are not beneficiaries of the will. After the death of the creator of the will, the document passes through probate. Probate is the legal process for managing the estates of those who are deceased or disabled. The nominated executor manages and distributes the assets, with or without the supervision of the court.


What is a Trust?

A living trust is a document that allows you to transfer possession of specified assets in the name of the trust. You can appoint yourself as the trustee, allowing you to continue to manage the assets while you are alive, or you can appoint an independent trustee if you would like your assets professionally managed. Independent trustees are typically banks or financial advisors. Co-trustees may also be appointed, and a successor trustee should be appointed to take over after you pass away or become incapacitated. Unlike a will, you cannot appoint guardians for children or leave instructions as to memorial and funeral services in a trust. To create a trust, you must be of sound mind. After death or incapacity the successor trustee is to manage and distribute the assets per the trust’s instructions. There a number of different types of trusts that can be tailored to your specific needs. For example, some may limit how and when distributions go to the beneficiary.


What are the Differences between Wills and Trusts?

One basic difference between wills and trusts is that a will is handled by the probate court and goes into effect only after death. The Court will ensure that the will is valid and that the property gets distributed the way the deceased intended. A trust, on the other hand, goes into effect as soon as it is created, and the property passes outside the probate court.

There are other important differences to take into consideration when deciding between a will, a trust, or both.   


Privacy

Because a will passes through the probate courts, it becomes a part of the public record after the death of the creator. The court does not oversee the passing of a trust – therefore the assets, beneficiaries, and terms of the trust remain private. If privacy is something that is important to you, this may be something to take into consideration when deciding whether to put certain property in a trust, or to pass the property on through a will.


Time and Cost            

Another effect of a will passing through probate is that it can take a long time, and can be costly after death. The probate process in Illinois takes at least 6 months, because the Illinois Probate Act requires courts to give potential creditors 6 months to file their claims against the estate. However, no transfer of property is needed to create a will, so the cost to create a will is likely to be less than the cost to create a trust.


In a trust, the specified assets must be transferred into the trust and specific instructions must be given to the current and/or future trustee, making a trust potentially more costly and complicated to create than a will. If you have an independent trustee managing your trust, you will have to pay fees. However, after the creator is deceased, the distribution of the trust will likely be much less complicated and occur much quicker. Trusts can be written such that beneficiaries of the trust start receiving assets immediately after your passing.


Property

A will and a trust require different planning with regards to property as well. Property may be distributed through a will, but it covers only property that is solely in your name at the time of death. It does not cover property that is held in joint tenancy, which passes directly to the joint tenant.


If the value of your estate is under the “small estates” limit in Illinois, the will can pass under “summary probate,” which is a simplified probate procedure. Instead of appearing before a judge, the executor would only need to file a few forms. After the forms are processed, the assets can then be distributed. In Illinois, the summary probate procedure can be used for estates valued at less than $100,000.


A trust covers property that has been transferred to the trust. Therefore, if two spouses jointly own property, they can decide to transfer the property from their names over to the trust. The trust can then name beneficiaries and instruct the trustee as to how and when the property is to be distributed. Trusts tend to allow for more flexibility in what property can be distributed and how it is distributed.


 Making Amendments

A trust may be amended or revoked any time during the creator’s or creators’ lives, so long as they are deemed competent. After death of the creator, the terms of the trust become permanent. Unless the trust is written to require otherwise, a trust may be amended without the signature of a notary.


A will, however, must be amended through a Codicil, which requires the signature of two witnesses who are not beneficiaries of your will. You may also elect to revoke the current will and create a new one, especially if you have multiple amendments to one will. This lowers the risk of confusion.


Having Both a Will and A Trust

Another option is to have both trust and a will. For example, significant assets can be transferred into a trust, with the will covering everything else. If the value of the items left to the will is below $100,000, then it can go through the simplified summary probate process. A will can also be used with a trust in order to appoint guardians for children, or give instructions as to funeral or memorial arrangements.


When creating either a will or a trust, an attorney can guide you through the process and draft the necessary documents, ensuring that the documents are written clearly and unambiguously.  This will deter people from contesting the documents after your death, saving your loved ones from a lengthy, painful process.