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Do I Need Both a Will and a Trust?

Updated: Oct 20, 2023

Welcome to our video on estate planning! In this video, we’ll be discussing the differences between a will and a trust, and whether you need both. These two legal documents serve different purposes, and it’s important to understand their roles in protecting your assets and ensuring your wishes are carried out. Join us as we explore the benefits of having both a will and a trust, and how they can work together to provide peace of mind for you and your loved ones. Don’t forget to like, share, and subscribe for more informative content on estate planning!


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Transcript of Video: "Do I need both a will and a living trust?"


I'm an estate planning and asset protection attorney here in Wisconsin and this topic comes up often at my office when thinking about which type of document is right for your estate plan.


The important thing to remember about a will and a trust is they're both estate planning documents but the difference is when each kicks into action. A will is something you sign during life and only becomes effective upon your death. A living trust becomes effective immediately.


If you're using a living trust for your estate plan which I often recommend because remember, a living trust, you can avoid probate on your assets by using a revocable living trust you set up during life and the trust continues after your death but a will by definition must be presented to the Probate Court after your death. It must go through probate.


So this question today, "Do I need both a will and a trust?", in general, you need to pick one which document is going to be the main vehicle for my estate, a will-based plan or a trust-based plan. Now at my office, I often favor using a trust because we can avoid probate on your assets and the time, expense and fees of probate with the trust plan. I can't do that with will plan because again, by law, a will must be presented to the probate court and if you have over $50,000 of probate assets in Wisconsin, you must go through the formal probate process. If you have less than $50,000, there's a small estate Transfer by Affidavit process and then other states they generally have the smallest state limit as well. In some states, it's lower than $50,000, and in some it's slightly higher.


But the difference is the trust becomes effective immediately when you sign it and it can continue to manage your assets both during life and after death where the will only kicked in after death and it must get filed with the probate court. So a will lays out your wishes only for what happened after you die, a trust can lay out your wishes during your life and after death and it can manage assets during any periods of incapacity during your life which is very important.


Do I need both a will and a trust, I would say if you're doing a trust-based plan, I generally pair, the trust is the main vehicle. The longer document but I pair it with what's called a pour over will and it's a shorter will that says if there's any asset I forgot to place into my trust during life, I pour it over into my trust upon death. Now the way I explain this to clients is we always want to retitle assets during life into the trust and or make them payable on death to the trust upon your death.


If you have a brokerage account you don't want to retitle to the trust which I generally recommend instead you could make it payable on death to the trust or perhaps a better example I would recommend retitling the brokerage account but let's say you have one savings account for whatever reason you don't want to retitle it, you can make it payable on death to your revocable living trust.


Now again, I favor retitling it to make it as easy as possible for your heirs but there's two methods both of which will avoid probate upon your death, to get the asset into your trust. However, on that note, why would you want the will alongside the trust - so for using the trust as the main vehicle, I recommend you do a shorter pour over will that would pour over any asset you forgot into the trust upon your death.


Now an example people might ask me, I know all my assets but an example might be an asset you're going to inherit 10 years from now that you don't know about like a one-fifth interest in a piece of real estate up north from your uncle. That might be an example you inherited it, he died one month, you inherited it technically but you didn't even have time to get it retitled to sign a quit claim deed into your trust for your one-fifth interest or maybe you and your cousins were planning to sell it, that would be an example but let's say that one-fifth interest in the property was worth $60,000, that's an example of something your pour over will could pour over into the trust for you. Now the other reason to have a will with your trust is if you have minor children, you want to name the guardian for the minors inside of the will, we generally don't do that inside of the trust, so it's still very important to have that will in place. The difference what I discuss at my office is if we do a trust plan, we are not planning to use the will. We have the will there as a backup but we don't want to plan to use it because in my opinion, I tell my clients you pay me a significant amount of money to put together a trust plan for you to help avoid probate, so we don't want to leave one asset outside and still have to go through a probate. Let's say save all the money of avoiding probate and make sure everything flows through the trust but then we have the pour over will there just in case, like I said, there's some things you can't anticipate. An unexpected inheritance from an uncle or perhaps even in a worst case scenario, what if you were to die in a wrongful death and your family brings a wrongful death action on behalf of your estate, the will is good to have in place to name someone who's in charge of your estate, who could bring that legal action for you, because you would be dead at that point.


That's just one example of why I believe it's important to have that pour over will in place along with the living trust. If you don't do a living trust, you definitely need a will because you have no other planning in place if something happens to you.


Now remember, you can avoid probate on many assets by using payable on death and beneficiary designations and I like to pair those with a revocable trust plan in order to avoid the time, expense and delay of probate on all of your assets.


So great question and thank you for asking, thank you for tuning in and we'll see you next time!


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© 2023 Burton Law LLC. All Rights Reserved. Transcript and captions provided for ease of access for the hearing impaired.

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