Living trust vs a will

UPDATED: Sep 30, 2022

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Living trust vs a will

My wife and i have a will,
power of attorney, healthcare
power of attorney and living
will. Should we consider a
trust? I read with it you can
avoid probate but it can be
costly and every asset must be
entered into it…updated as
well? What is the advantages vs

Asked on May 16, 2017 under Estate Planning, North Carolina


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

A living trust, or more properly an intervivos trust, can avoid probate, but there are two costs to it: monetarily, setting up a proper trust to accomplish your goals is very technical, so expected to spend a few thousand dollars on legal fees to get it done correctly. The real cost, however, is non-monetary: you have to transfer your assets to the trust, and the assets are no longer yours. The assets will be managed, invested, controlled, distributed, etc. by the trustee(s) in accordance with the trust instructions. No matter who the trustree(s) and how good the instructions, you give up control and flexibility/freedom by putting your assets into a trust. Since estate taxes are not actually a big factor for most estates--only estates worth more than around $5.49mm for an individual, or $10.98mm for a couple, will face any federal estate taxes, for example--it is unclear whether, simply to avoid the probate process (since tax avoidance is therefore generally not a factor), the complexity, cost, complications, etc. of a trust is worth it.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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