Your estate plan should include either: (1) a simple will, OR (2) a trust with a pourover will (a will saying “everything goes to my trust”). A will and/or trust is the backbone of your estate plan. Your attorney can help you work out which is better for you.
A will is a document that describes how your property should be distributed at your death. It also allows you to appoint a guardian for your children if they are under 18 when you die.
A will has several pros. First, it is cheaper and simpler to create than a trust. It also doesn’t require you to retitle or your property or do anything with it right now.
On the other hand, a will becomes part of the public record at your death so you cannot keep anything in it private. Additionally, property which passes by will goes through probate (a proceeding where the will is accepted by the court, and the decedent’s property is collected and distributed according to the will’s instructions). Probate generally takes several months and requires payment of some fees.
A trust is a document that provides for management of your property by yourself or another person (the “trustee”) while you are alive, and describes how it is to be managed and/or distributed after your death. A trust can be used to achieve specific goals that a will cannot achieve, so a trust is often a better option for individuals with particular needs or special family circumstances. For example, a trust is generally the most effective way to plan for blended families (couples with children from previous marriages). A trust can also be used to provide for children or other loved ones who have special needs, while ensuring that they remain eligible for public benefits such as Medicaid and SSDI. You can even set up a trust to take care of a beloved pet after your death!
Trusts have a number of benefits. A trust provides more privacy for your estate plan, because it does not become part of the public record like a will. Passing property through a trust avoids the cost, hassle, and delay of probate. A trust provides a plan for incapacity by naming a backup trustee who can take over management of the trust if you become incompetent (or unable to handle your own affairs). Finally, a trust allows for greater control of your property after your death than a will, because you decide how long the trust will continue and under what rules your property is to be managed.
However, trusts do have one major drawback: the initial financial and time investment. Trusts are more expensive than wills to set up because they are more comprehensive and complicated. Additionally, you have to put in a bit more time at the creation of the trust to retitle property in the name of the trust and to change things such as beneficiary designations on life insurance, IRAs, etc.
As you can see, wills and trusts both have benefits and drawbacks. Which is right for you depends on your budget and your circumstances. You should discuss with an attorney which of these should form the core of your estate plan.