Apr 05, 2009

Do You Need a Will or a Living Trust?

Both a will and a living trust are efficient devices to leave property to loved ones. Simply identify the property and who you want to receive it and either legal device will accomplish the task.

But unlike a will, a living trust lets your property bypass probate court -- something that will save your family money, delay, and hassle. The only drawbacks to a living trust are that you must transfer your property to the name of the trust, and living trusts don't work to name guardians for children.

So why doesn't everyone opt for a living trust over a will? The main reason is that these days there are many other and usually simpler ways to avoid probate. As set out in detail in Nolo's 8 Ways to Avoid Probate, bank accounts, brokerage accounts, and retirement plans, such as IRAs and 401(k)s, can all be transferred free of probate simply by designating a beneficiary in writing. And couples who own a house or other real estate together can take title in joint tenancy (or in some states, tenancy by the entirety) and also avoid probate.

Assuming you take advantage of all these probate avoidance approaches, a simple will is your best bet to pass the rest of your miscellaneous personal property. And again, no probate is likely to be required since most states exempt small estates.

So when might a retired, or soon-to-be-retired, person want to choose a living trust? Usually when a house or other real property is involved. Even if the property is co-owned in joint tenancy or tenancy by the entirety, living trusts will avoid probate automatically and pass the property to the survivor only when the first spouse dies. If the survivor dies still owning the property, probate will be required, unless a living trust has been drafted and the property transferred to it. And, of course, the same thing is always true if the owner is single and owns the property outright.

Okay, assuming you're convinced that as an older real property owner a living trust makes the most sense to pass your property to your loved ones, how do you go about getting one? Lawyers typically charge $800-$1,200 for a trust for a single person and up to $2,000 or more for a couple. (Nolo's Lawyer Directory, complete with detailed attorney profiles, is one good place to find a quality lawyer.) Or you can do your own living trust using software like Quicken WillMaker Plus. Finally, an increasingly popular option is to do the job online. Both Nolo and Legal Zoom offer reliable online living trusts. Nolo charged $149 and Legal Zoom charges $219 and up. What's the difference? Legal Zoom uses advertising to get the word out about its products, while Nolo relies on the positive recommendations of its satisfied customers. Plus, unlike Legal Zoom, Nolo's Online Living Trust allows you to access your completed trust documents online, from anywhere, whenever you'd like.