What is the Difference Between a Will and a Trust?

What is the Difference Between a Will and a Trust?

Both a will and a trust are excellent tools used in estate planning that can ensure that personal assets are managed according to an individual’s wishes. The main difference between the legal documents is that a will is a set of instructions that outline how assets are to be distributed after you pass away. Conversely, in a trust, either you or your appointed legal representative use your wealth according to your instructions while you are alive.

Which is Better: A Will or a Trust?

Wills each have their own advantages and disadvantages, and deciding which one is preferable would most likely have to be determined based on your personal preferences and circumstances. One definite advantage to having a will is that they are generally less expensive to establish than a trust. Nonetheless, this is not necessarily the case when an estate goes through the process of probate. During probate, the administrative costs involved with a will have the potential to exceed the costs of establishing a trust. The Commonwealth of Virginia requires a will to go through the probate process regardless of whether the decedent did or did not have a valid will. Another factor to consider when deciding if a will is the correct estate planning option is the fact that once a will goes through the process of probate and a grant of probate has been issued, it becomes a public document. As such, anyone has the ability to apply for a copy of the will. It can then be public knowledge as to the details of the disbursement of funds, personal assets, and other information contained in the will.

One major advantage to having a trust, also known as a living trust, is that it enables your heirs to avoid probate when the time comes. One of the main goals of a trust is to make it easier for your heirs to dispense of your estate after you die. Assets that have been transferred into a trust are not obligated to go through the process of probate after you pass away. This is also a valuable tool used in estate planning as it can make predeterminations as to who has the legal authority to manage your affairs should you become unable to do so during your lifetime. It should be stated that in order for your trust to work as you intend, it is necessary to properly fund the trust. If you do not properly fund the trust, it may still be subject to probate under state law.

How Does the Probate Process Work in Virginia?

In Virginia, after a person dies, then the legal process of probate begins. If a decedent passes away with a valid will, their personal assets and other property are dispensed according to the terms and conditions stipulated within the will. Conversely, if a decedent dies and does not leave a will, then Virginia’s probate laws direct how that person’s assets are distributed. Probate is not applied in every case of death but is instead based on the number of assets that a person leaves behind. During probate, a person known as an executor has the authority to pay debts and taxes, gather the decedent’s assets, and eventually distribute the assets to the rightful heirs.

What Type of Assets Have to Go Through Probate?

For the most part, the types of assets that must go through the process of probate are those that only have the decedent’s name on them with no listed co-owner. Some examples include:

  • Bank accounts with no co-owner and no beneficiary designation listed on the account
  • Stocks and bonds only in the decedent’s name
  • Real estate, such as a house, that is only listed under the decedent’s name
  • Other possessions such as jewelry, household furniture, and cars only registered in the decedent’s name.

If you have questions that pertain to which is better, a will or a trust, please contact our law firm and schedule an appointment with one of our experienced estate planning attorneys. We can answer your legal questions and assist you in making an informed decision as to which option would be right for you.

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With an office near Town Center, Virginia Beach and a second location beside the Chesapeake courthouse, our team provides quality legal representation across the entire Hampton Roads Area.

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