Find Attorney Lawyer in Over 70 Practice Areas in United States and Canada

Wills-and-Trusts

What's the Difference Between a Will and a Trust?

Wills and trusts are legal devices that allow you to dispose of your property the way you want. However, both wills and trusts are governed by detailed rules and laws. If you are considering making a will or establishing a trust, consider getting help from someone who knows the law.

Why Do I Need a Will?

A will allows you to decide what will be done with your property and possessions when you pass on. A will allows you to bequeath specific gifts to specific people, but it is more than a guarantee the welfare of your loved ones. Without a will, your estate passes according to laws of intestacy and the state determines how your estate is distributed. A will lets you decide, because even though you can't take it with you, you can still choose who gets what.

Elements of a Will

A majority of states require that a will must be in writing (this includes wills that are prepared on a typewriter or printed out from a computer) and signed by at least two witnesses. Some states do permit something called a holographic will, which is a will that is made and signed by an individual without any witnesses. However, there are other states that do not consider holographic wills as valid because of the potential for fraud.

There are many rules regarding the construction of a will. On that same note, there are also rules that deal with altering, destroying, reinstating and supplementing your will. These rules vary from state to state. For example, some states follow the Uniform Probate Code, while other states have their own specific laws regarding wills. Regardless of which rules apply to you, you can be certain that there is a specific rule for every conceivable situation.

The Matter of Trusts

A trust is another means giving your property. The person making the trust (known as the "settlor") gives property, usually money, for the benefit of another person ("beneficiary"). However, a trust involves a third party, the trustee. The trustee actually controls the contents of the trust. His power to administer the trust is given by the settlor. The trustee also has duty to maintain the trust as well as dispose of the trust according to the settlor's wishes.

Types of Trusts

There are trusts designed to handle different situations. For example, a "pour over trust" is a trust that is created by a will-the estate goes into the trust and the trust distributes the property. A "discretionary trust" is a trust in which the settlor gives the trustee the power to administer the trust in whatever way the trustee sees fit. There are also "spendthrift trusts", which prevent the beneficiary from assigning rights for future income, which has yet to be paid. These are only some examples of the types of trusts that exist.

There are many and varied rules regarding wills and trusts. What may work in one state may be invalid in another state. In some instances, if you don't follow the appropriate rules, your will may be declared invalid. The same is true for trusts. If the required elements or language are not present, the trust may fail. Seeking the assistance of a trusts and estates attorney who knows the relevant rules is the best way to ensure your wishes will be honored.