Will vs. Trust: Which One Is Right for You?

By: Kelly McMahon O’Brien, Estate & Tax Planning Attorney

As an estate and tax planning attorney, one of the most common questions I hear is: “Should I use a will or a trust?” The answer, as with most things in law, is: it depends.

Both tools serve a purpose in a sound estate plan. Choosing the right strategy depends on your specific goals, assets, family dynamics, and long-term wishes. This post will walk you through the key differences, advantages, and limitations of each, so you can make an informed decision about which option, or combination of both, best suits your needs.

Understanding the Basics

A will is a legal document that directs how your assets will be distributed after your death. It can also name guardians for minor children.

A trust, specifically a revocable living trust, is a legal arrangement in which you transfer assets to a trust to be managed by a trustee for the benefit of your chosen beneficiaries. Unlike a will, a trust becomes effective during your lifetime and provides more control and flexibility, both during your life and after your death.

Key Features of a Will

• Takes effect only at death – A will has no legal power until you pass away.

• Requires probate – Your estate must go through the court-supervised probate process to distribute your assets.

• Simpler and less expensive to create – For basic estates, a will can be a cost-effective solution.

• Names guardians for minor children – A will is the appropriate place to designate who will care for your children if you’re no longer able.

  
  

Disadvantages of a Will

• Probate delays – Probate can take months or even years to complete.

• Lack of privacy – Because probate is a public process, the details of your estate become part of the public record.

• Limited control – A will generally distributes assets outright, which may not be ideal for beneficiaries who need oversight, such as minors or individuals with poor financial habits.

Why Choose a Trust?

A revocable living trust offers a number of benefits that a simple will cannot.

1. Control Over Distributions

You can tailor distributions to your beneficiaries’ needs, whether you want to delay access until a certain age, provide structured payouts over time, or protect assets from being spent too quickly.

2.  Privacy & Probate Avoidance

Unlike wills, trusts avoid probate. This means your estate can be administered privately and efficiently, often without court involvement.

3.  Incapacity Planning

A trust allows you to plan for incapacity. If you become unable to manage your affairs, your successor trustee can step in immediately without the need for court intervention.

4. Reduced Potential for Conflict

Because trusts avoid probate, they reduce the likelihood of disputes among heirs or will contests, which can be costly and emotionally draining.

5. Support for Blended Families & Tax Planning

Trusts are particularly valuable in second marriage scenarios. You can ensure a surviving spouse is cared for while ultimately preserving assets for children from a previous relationship. Trusts can also be used to structure tax-efficient transfers through mechanisms like QTIP trusts, helping to maximize use of the estate tax exemption.

6. Special Needs Planning

If you have a loved one with a disability, a properly drafted trust can provide for their needs without jeopardizing eligibility for public benefits.

Disadvantages of a Trust

• Cost – A trust-based estate plan typically costs more to establish than a simple will, sometimes three to four times as much, depending on complexity.

• Ongoing Administration – Creating a trust is not the end of the process. You must transfer (or “fund”) assets into the trust—this often includes re-titling real estate, changing account ownership, and updating beneficiary designations.

Which One Should You Choose?

There’s no one-size-fits-all answer, but here are a few general guidelines:

A  Will might be best if:

• Your estate is small and straightforward.

• You aren’t concerned about probate.

• You want a simple, cost-effective estate plan.

• You don’t need structured or long-term asset management.

  
  

A Trust might be better if:

• You want to avoid probate and keep your affairs private.

• You own property in multiple states.

• You have minor children or beneficiaries who need oversight.

• You’re concerned about protecting assets from creditors, divorce, or lawsuits.

• You want incapacity protection.

• You’re planning for a high-net-worth estate or have estate tax concerns.

When You May Need Both: The Pour-Over Will

Even if you have a revocable trust, you still need a will—specifically, a pour-over will. This type of will acts as a safety net, directing any assets you didn’t transfer into your trust during your lifetime to be “poured over” into the trust at death. It also allows you to name guardians for minor children.

Final Thoughts

A will is a good starting point. But for many clients, a trust provides greater flexibility, privacy, and control, both during life and after death. Whether your estate is simple or complex, working with an experienced estate planning attorney ensures your plan reflects your goals and protects the people you care about most. If you’d like to discuss whether a will, a trust, or a combination of both is right for you, I’m here to help.