If you are a homeowner or a business owner in Massachusetts, or if your loved ones rely on you, arrange to meet with a Cape Cod estate planning attorney to prepare an estate plan. Every adult with assets, properties, or loved ones needs to have an estate plan in place.

Many estate plans include both a last will and testament and one or more trusts. One of those documents will serve as the basis of the estate plan. What is the difference between wills and trusts? Will you need both a will and one or more trusts as part of your own estate plan?

If you’ll keep reading, you will learn the difference between wills and trusts, and you will also learn how to begin preparing your estate plan – and where to find the help you will need.

When it comes to estate planning, one size doesn’t fit all. There is no specific trust, will, or estate planning formula that works for everyone. Your estate plan will depend on your properties and assets, your family’s needs, your business (if you own a business), and your financial situation and most importantly, your estate planning goals and objectives.

What is Probate? Can You Avoid It?

One key difference between a trust and a will is that with a will alone, the property and assets in your estate will be subject to the probate process. However, if you establish a trust, the property and assets that are owned by your trust when you pass away will avoid the probate process.

Probate is often a slow and costly procedure which slows the distribution of properties and assets to beneficiaries, although smaller estates in Massachusetts may be eligible for simplified probate procedures if the decedent did not leave real estate and if the estate is valued at or under $25,000.

You should also know that probate is not a private process. It’s a judicial procedure, so your will goes on the public record, while a trust remains a private matter. Additionally, a last will and testament is more likely to be challenged after you pass away than a trust.

What Do Wills Accomplish?

A last will and testament designates the person or persons who will inherit your assets and property when that time comes. Your will also designates a representative to manage your estate and your financial affairs, and if you are a parent, it names a guardian for your minor children.

If you do not name a guardian for your minor child, and the parents (or a single parent) pass away, the fate and custody of your child could be decided by others.

A living trust takes effect when you sign it, but a last will and testament goes into effect only at the time of your death. The right Massachusetts estate planning attorney can make sure that your will plainly and precisely expresses your instructions and wishes.

What Do Trusts Accomplish?

Unlike a last will and testament, you can use a living trust to transfer property and assets both during your lifetime and after you’ve passed away.

Upon your death, any property or assets that were moved into the trust are no longer a part of your estate, so the property and assets avoid probate. Your designated successor trustee can easily and quickly distribute the property and assets to your heirs and according to your wishes.

When you establish a trust, during your lifetime, you serve as the trustee and you manage the assets and property. If you become disabled or pass away, the successor trustee you’ve named assumes management of the trust.

How Are Trusts Managed?

After your death, the trust is managed and distributed according to your instructions, and the courts are not involved. If you establish a trust, you must make the trust the legal owner of property and assets, and you must act as the trustee during your lifetime.

Property deeds, for instance, should be reissued to name the trust as the property owner. If you do not move properties and assets into a trust, you may still need a probate to get the assets into your trust.

You will need to decide – with your estate planning attorney’s help – whether you need a will alone or a will and a trust as part of your estate plan.

How Will an Estate Planning Attorney Help You?

You can own your property and assets in your own name and control their distribution with your will. The alternative is having a trust own the bulk of your assets and spell out how those assets will be distributed. Fortunately, people who use a revocable trust and transfer their assets to the trust, still control, as Trustee, the assets in the trust and still technically own the assets too. But as in so many things, the best option for you might not be best for someone else.

A Cape Cod estate planning lawyer will help you prepare a last will and testament and/or a living trust. As mentioned previously, whether you include one or both of these documents in your estate plan will depend on your family, your finances, and a number of other variables.

You may wonder if you really need an attorney’s services when you can download or buy blank trust and will forms or buy a “do-it-yourself” trust or will kit. You need an attorney’s services for several reasons:

  1. Estate planning attorneys know about the difficulties and disputes that can arise when a trust or a last will and testament is not worded properly.
  2. Estate planning attorneys can provide valuable insights and sound guidance. For example, you might not know about estate planning options that would be perfect for you, but your attorney will be familiar with those options.

What Else Should You Know About Estate Planning?

When you prepare a trust or a will, having the right attorney’s guidance and insights is vital. Your attorney can advise you regarding your estate’s tax and debt issues. Finally, your lawyer will help your trustee distribute your assets and help your loved ones close your estate.

What else should you know about wills, trusts, and estate planning? A will is typically less costly to create than a trust. But at your death the cost to your family to settle your affairs will be significantly more costly if you use a will-based estate plan. Generally, an individual or couple whose net worth exceeds $200,000 will save their family money by using a properly funded revocable trust rather than a will. Wills and trusts should both be reviewed and updated periodically. Estate planning requires a significant amount of time and thoughtful consideration.

Proper estate planning cannot be done in haste, but the time to start planning your estate is now. To learn more about wills, trusts, and estate planning in Massachusetts, or to begin preparing a will or a trust, schedule a consultation – promptly – with a Cape Cod estate planning attorney.