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Difference between a will and a trust

Hello. I'm sorry if this is a stupid question but when I decided to do something about my estate plan I realized I don't really even know the difference between what will is and what a trust is and what they are for, specifically. I think I have a pretty simple situation. I have no husband or kids. But I'd like to leave some things to my relatives. Thanks for your help.

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Not a stupid question.  Your will is a written set of instructions in which you (the testator) explain to your personal representative, your heirs, and the probate court how you want your probate assets to be distributed.  Notice the use of the term probate assets.  You can read that post for an explanation of what a probate asset is, but, for now, the important thing to understand is that you may own assets that are non-probate assets, meaning their disposition will not be controlled by your will, such as a house that is jointly owned with rights of survivorship.

In some cases, a person may need nothing more than a well drafted will to effectuate her estate plan. (Although, you should also have a healthcare proxy and a power of attorney.)  In other cases, a person may need to use a will and one or more trust to effectuate her estate plan.  The best way to make that determination is to talk to an estate planning attorney.

A trust is a bit more complicated than a will.  Essentially, the trust is an entity to which you can convey ownership of specified assets.  Those assets will then be held and managed for a legally recognized purpose.  The person who creates the trust, sometimes called a settlor or donor, conveys ownership of the assets to the trustee of the trust, the person or entity you have chosen to manage the trust and carry out the purpose of the trust. The trustee does not own the assets personally, but takes them in her capacity as the trustee. At some specified time, perhaps upon your death, the trustee will deal with the assets in accordance with the instructions you provided in the trust document.  Depending on the purpose of the trust (medicare planning, estate planning, asset management, tax planning, or something else) the instructions could require the trustee to hold and manage assets for some period of time or until some event occurs, or to distribute them to the beneficiaries. 

There are many different types of trusts.  One important distinction is that of revocable vs. irrevocable.  You can read through this forum, or look at the list of similar questions, below, for information about specific types of trust and why they are used.  Good luck.

As The Editor stated, there are many matters to be addressed in an estate plan, and multiple documents, including a durable power of attorney and a health care proxy are recommended.

However, leaving property to your relatives can be accomplished by means of a Will, alone.

A Trust could accomplish this same distribution, but with less oversight of the probate court. Property transferred to the Trust would be considered a non-probate asset. Under the new Massachusetts probate code, if the value of your probate assets is under $25,000 plus a vehicle and does not include an interest in real estate (interests in real estate are usually transferred to a Trust), your estate will be eligible for a less expensive and less time-consuming process.

Thomas Swain Smith
Massachusetts Estate Planning Lawyer

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