What’s the difference between a Will and a Trust?
Death isn’t something anyone wants to think about, but when your time comes, you need to think about the impact it will have on your loved ones. This is why you need to be prepared to have a Will or a Trust that will come into effect after your death. Especially during these times of uncertainty, producing a document that is triggered upon when you pass on might be more important than ever to protect your family and your assets. But, what is the best way to go about your estate planning? It’s time to clarify the differences between Wills and Trusts.
Questions to be answered in this article
What is a Will?
A Will is a legal document stating what you would like to be done with your assets after you die, as well as how you may want any affairs handled. It comes into effect after your death and means the courts have to follow the guidance you have stated into the document to distribute your assets to whoever you have chosen them to go to.
The statement should include the beneficiaries of your assets, describing what the extent of those assets are as well. It should also have details of who you would like to take care of your children and become their guardian if you have them.
All of this should be signed, written and witnessed by a legal advisor. It is not essential to have a Will, but is heavily advised to have one prepared. In the case of a death without a Will, the estate will be processed and distributed by the court, meaning that it is likely your assets may not end up in the hands you would’ve wanted them in.
What is a Trust?
A Trust is similar to a Will in that it dictates the distribution of an estate. However, Trusts can be utilised before the death of the distributor. The assets go into a Trust where a trustee or trustees can access it and use it how they like. What this means is that when you put assets into a Trust, you no longer own them as they now belong to the trust, but while you’re still alive you will be able to access it yourself. Only people that you have made trustees are able to access it beyond your death.
Essentially a trust passes on the responsibility of your assets to one or a small number of individuals. Rather than you deciding where specific elements of your estate should go, your trustees will have that power.
There are actually a number of different types of Trusts for different situations which could involve other tax implications, so it is always recommended to receive legal advice if you are unsure whether you are within your right to assign a beneficiary to a particular asset.
What are the main differences?
- Comes into effect after death
- Details the distribution of everything in your estate, everything that is the person’s property
- Includes details of assets, beneficiaries and children’s guardians
- Comes into effect as soon as documents are approved
- Assets left in the hands of trustees
- Only covers assets stated in document
- Still able to access until death
Which option is right for you?
This is, of course, a very personal decision. It all depends on what you think is best for your family and loved ones that you will be leaving or entrusting your estate to. It’s all in the name really, if you “trust” your family members to do as they please then a trust might be the way to go. If there are lots of specific ways in which you would like your assets to be dealt with then these sorts of details should be put in a will.
There may be some parts which you want to place into a trust but some aspects that you want to do something very specific with. In this scenario, there are options, in that you can potentially have a will and a trust. However, as there are lots of overlaps, it is important to seek the right advice, which the next section will explain.
Can you have a Will and a Trust?
Yes, you can, and more often than not when they are both used, they will have some sort of affect on each other. For example, you can include elements of a trust in a will. A will may say that certain assets should go into a trust which only the trustees listed will be the beneficiaries of it.
The main thing to keep in mind is any potential overlaps when navigating a tricky road like this. Where possible, you’ll want to avoid disputes that may cost your loved ones. So it is vital that if you end up having both forms of legal estate planning, then it must be well-organised and clearly state who the beneficiaries are of every trust and asset.
In any situation where you have both and one contradicts the other or creates some sort of dispute, then the trust will always take precedence over the will. With both types of estate planning being legal documents, you’ll want the best solicitors to offer their help and advice when creating the official documentation before having it signed and sealed. Whether you need a will or trust, we can help.