September 2, 2015



Estate-PlanningEstate Planning Series

Part III: Simple Will vs. Living Trust

One of the most common questions estate planning clients ask is whether or not they need a Trust or a Will. As with most client legal questions, of course, the typical “lawyer” answer still applies: it depends.

Every individual and family has a different set of facts and circumstances. For some, having a Revocable Living Trust Agreement as the cornerstone of their estate plan, paired with a Pourover Will, might best suit their needs. For others, a simple Will can accomplish everything you want.
Before we get into the pros and cons, it is important to understand a basic definition of each:

A Will is a document that takes effect when an individual dies and it dictates how to distribute that individual’s property. It essentially provides a set of instructions for administration of your estate to the probate court.
A Living Trust is a document dictating how you want your property distributed for your benefit when you are unable to care for yourself, and how you want your property distributed upon your death.


• Simplicity
• Less expensive to create than a Living Trust

• Does not avoid Probate, which can be…
o Costly, depending on the value of probate assets;
o Time-consuming, generally taking a minimum of one year for estate administration
o Public (the Will and all related documents filed with the Court are public record)
• Easily contested (when compared to a Living Trust)


• Flexibility
o An individual has much more post-death control over their assets, such as dictating requirements for beneficiaries to receive certain benefits.
• Certainty
o Since a Trust is created and funded during your lifetime, it is much more difficult to assert upon your death that the terms of the Trust do not express your desires.
• Sharing of Enjoyment
o Trusts allow for lifetime use and enjoyment for one beneficiary, with the remainder passing to others after the first beneficiary’s death.
• Probate Avoidance
o If an individual has multiple parcels of real property, deeding that land to the Trust can avoid the necessity of probate in another state.
o Assets titled and owned by the trust become non-probate assets, and bring down the costs of probate – often avoiding the process altogether.
o The terms of a Trust do not have to be recorded or filed of record, providing privacy and confidentiality to the drafter.

• Complexity
o Paperwork on the front end (transferring properties, accounts, etc.) can often make the creation of a Trust more burdensome and complex
o Management of assets by a Trustee (both before and after the death)
• More expensive to create than a simple Will

While it may seem that Living Trust-based planning offers more advantages than Will-based planning, in reality, everything depends on an individual client’s circumstances, wants and needs. It is also important to remember that a Living Trust is not the only avenue for probate avoidance. Titling real property, bank accounts, vehicles, and other assets with survivorship rights or paid-on-death beneficiaries allow an individual to have direct control over the distribution of those assets without probate involvement.

Additionally, if probate avoidance is not a primary goal, but an individual still wishes to have gifts to others, young children for example, held in trust after the individual’s death, a testamentary trust can be created in the Will itself.
Regardless of your circumstances, having a plan in place is essential. A conversation with a South Carolina licensed attorney is the perfect place to start in determining what documents are best suited to your needs.