How do you know when you need a Trust instead of a Will?

trust-482655_1280In a previous post, I wrote about the times a person needs to have an Oklahoma Last Will and Testament. The Will is the most basic of estate planning documents. There are, however, times when need and/or personal preference dictate that the revocable trust is a better choice.

How do you know when trust would be better? Consider some of these factors:

1. Privacy is important.

As I wrote a couple of months ago, this factor is often underrated in estate planning. If a Will is probated, all records of the proceeding are publicly available and, indeed, available online for anyone to view and print at any hour of the day or night.

2. Strong desire to avoid probate.

A Will does not provide any means to avoid probate. If you pass away owning real property that is not jointly titled, your heirs will be going through probate process at some point. With an Oklahoma trust however, the trust exists and owns the real property the day it is transferred into the trust. Since the Trust is the owner of the real property, the death of an individual does not impact this.  No probate case is required to transfer title to the real property.  Your family saves time and money.

3. You need to plan for a mental disability or a special needs.

If you have children, grandchildren, or other dependents with special needs a Trust can be customized to meet these needs, by specifying and limiting access or control over inherited property. A Will allows you to pass on your property to those heirs but a Will in itself does not allow you to exercise substantial control over your heirs use of the property.

4. You own real property in more than one state.

If you have a summer home in Missouri, leaving that property in a Will probably means a Missouri probate: hiring an attorney in Missouri and paying attorney fees and costs to get the property transferred. A Trust allows you to hold and pass the title on the real estate to your loved ones without the unnecessary travel and expense if doing a probate case in a foreign state.

5. You have children who are not children of your spouse.

Children from previous relationships require special consideration because each child likely has an absolute right to inherit from their parent.  However, your current relationship circumstances may call for distributing property differently. A Trust, more flexible than a Will, is a better vehicle to handle these considerations and ensure that your assets go precisely where you them to go.

If you found this post useful, below are a few other posts which you may also find useful:

Why privacy is a highly underrated feature of a living trust

When do I need to have a will?

A diagram of the documents used in Oklahoma estate planning

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Posted by Shawn Roberts

On this blog, I write about and try to answer practical Oklahoma legal questions. My focus and most experience is in estate planning and business issues including Oklahoma non-compete law. I make a living as an attorney in the law firm I founded, Shawn J. Roberts, P.C. in Oklahoma City. I live in Edmond with my wife Amy and my two children, Sam (19) and David (11). We live precisely in the path of where the "wind comes sweeping down the plains."

1 comment

Years ago i worked for attorneys who wrote wills leaving one dollar to potential heirs and then listing the heirs they left the estate to in wording with to share and share alike or to the heirs and their assigns.
My husband folks did a will years ago when this concept was widely used. There were three children , one deceased, so his parents left one dollar to his children and then their estate to go to their other two children to share and share alike, no mention of heirs and assigns. We took this to mean that upon his parents death the estate would go to the two living children or the living child. The parents passed and the will was being probated when my husbands sister passed also. One attorney says all now goes to my husband since no mention to leaving to their heirs and assigns; but another attorney is saying that his sisters part now becomes a part of her estate to her husband and children and even that his deceased brothers children will need to be included and all would need to sign approval to dispose of property. Need help on who is correct and would the judge have authority to decide which is correct?