As a probate law firm in Marin County, California, our attorneys frequently field questions about the differences between a will and a trust,   the two primary methods of disposing of one’s estate. Many people today choose the revocable living trust. There are several advantages to having a trust. One is that a trust avoids the time and expense of a court supervised probate proceeding. Many people find this attractive. There is some expense involved in administering a trust post death, but generally it is substantially less than a probate proceeding. Please look at other articles on the website discussing trustees and trust administration.

A second advantage is that it is private. Therefore, as a rule, there is no court proceeding, and the general public is not able to look at the public records to see how your estate is being distributed.

Another benefit of a trust is that it may help avoid a conservatorship proceeding. This is because a properly drafted trust nominates a successor trustee to take over when you are unable to handle your affairs. Consequently, in most cases, there is no need for the court to impose a conservatorship, i.e. take control of your affairs, because you have chosen someone to have that responsibility as trustee. Please look at our article on conservatorships.

Another factor for you to consider, if you choose a trust, is who will be the successor trustee upon your death or even during your lifetime if you do not want to be the trustee or are unable to be trustee. You want to consider someone who is financially sophisticated and who you trust to carry out the terms of your trust without court supervision.

One of the negatives of a trust is that you must make certain that your assets are titled in the name of the trust or assigned to the trust. If this is not done properly, you risk having those assets probated. We refer to the need to see that assets are in the name of the trust as a “hassle factor.” If you frequently buy and sell property or move accounts around to different institutions, you must be vigilant to make sure the assets remain in the name of the trust. If you elect to have only a will rather than a trust, you avoid the hassle factor, but your estate will likely go through the probate procedure. Please look at our article regarding wills.