Setting up your estate plan and guarding your assets should be a priority for all people, no matter your age. But you might have questions on what legal documents you need or if you are taking the right steps to protect yourself and your assets. One question we often hear is, “If I have a living trust, do I need a will?”
First of all, let’s discuss the differences between a living trust and a will.
What is a Living Trust?
A living trust is a document you create that lays out your desires in regards to your asset distribution, your heirs and your dependents. Similar to a will, it declares what will happen after you die, but unlike a will, it dictates that your assets automatically transfer directly to your beneficiaries. They do not have to go through the probate process (remember, probate is a concern no matter what the size of your estate!)
In your living trust, you can name the person who will manage your trust (successor trustee). This person will serve as the executor of your estate after you die, and have the legal power to manage your legal, financial and healthcare affairs if you become unable to do so yourself.
There are two types of living trusts: revocable and irrevocable. With a revocable trust, you name the person(s) who will own your trust after you pass away, but you remain in control of it until your death. You can make changes to it or revoke it at any time.
With an irrevocable trust, you “give away” your assets; you put them in the names of your chosen successors ahead of your death, so they can take possession of them once you pass away. After you do this, you no longer own your assets and cannot make any changes or revoke your choices. That’s why it’s called irrevocable.
In addition, a trust is private, while a will becomes public.
Related: What is a Living Trust? What is a Living Trust?
What is a Will?
So, if I have a living trust, do I need a will? Here’s how a will is different. A will is a legal document that allows you to decide who receives your property after your death. It names the person who will carry out your wishes (executor), all beneficiaries (inheritors), guardians for any minor children, and special instructions on how your beneficiaries will receive your assets. For example, you may indicate that a minor child will not receive their inheritance until they turn 21. It is a public document that goes into effect after your death.
If I Have a Living Trust, Do I Need a Will?
Back to our original question of whether you need a will if you have a living trust.
The simple answer is, “Yes.”
One of the main reasons to have a will is to name a guardian for your minor children. Even if you have made a living trust, you need to put this wish into a will. Once you die, your will will be submitted to court as a public record and can clearly state the guardian without having to expose your living trust (private document) to be made public.
Another good reason to have both a living trust and a will is to cover all your bases. In your living trust you may have listed what you thought were all your assets, but you could have forgotten one or more. A will covers anything that may have been overlooked or acquired between the time you wrote your will and your death. You can state that if an asset is discovered following your death, it can be “poured over” into your living trust as part of your overall estate plan.
Let The Law Office of Joshua E. Hummer Answer Your Questions
If you’re still wondering, “If I have a living trust, do I need a will?”, let us help explain the difference. We’re happy to both discuss and aid you in creating a living trust and a will. Especially if you don’t have either already.
The Law Office of Joshua E. Hummer is located in Winchester to serve families and individuals of Northern Virginia and the Northern Shenandoah Valley. You’re never too old or too young. Everyone needs an estate plan. Let us help. Contact us today.