Santa Clarita Estate Planning, Living Trusts, and Probate Attorney Robert Mansour

Wills versus Trusts

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A Will only takes effect upon the death of the person. It is nothing more than a wish list of where you want your assets to go after you die. Going through probate has some advantages over trusts. The decedent's creditors have a very short statute of limitations period to bring any claims in a probate and once that period has passed, those creditors are barred from asserting claims against the heirs. The probate is an orderly and well established process; creditors and debtors familiar with dealing with an executor of a Will. Dealing with the probate court system and bureaucracy, however, can be a lengthy, costly, and frustrating experience. In conclusion, the Will presents none of the administration difficulties associated with a living trust during the life of the settlor.

A Living Trust is effective while you are alive AND after you've passed away. A living trust is a written declaration and contract in which you state that you (as "settlor") are transferring your property into living trust for the benefit of yourself during your lifetime (lifetime "beneficiary") and then for the benefit of your heirs (remainder "beneficiaries"). You will be the "trustee" of your living trust which means that during your lifetime, you will have complete control over the living trust's assets. The "successor trustee" you name will take control over your living trust in case of your death or incapacity. In addition, you will have the power to change, amend or revoke your living trust at any time during your lifetime.

Initially a living trust has greater costs with respect to its formation and implementation than a Will, but those costs are usually a small percentage of the amount saved through the avoidance of probate costs at the time the Settlor dies. In other words, you end up saving a lot of money by spending money now. Additionally, if confidentiality and continuity of ownership are important objectives, then the living trust is the document of choice. Conversely, if confidentiality and continuity are not important objectives, and if the initial cost and constant administration of a living trust outweigh the potential savings through the avoidance of probate, then a Will should be used. Also, a trust is generally more difficult to contest than a basic will.