At Kushner Legal Corporation, one of the most common questions we receive is what the difference between a will and trust is. It is our goal to provide comprehensive estate planning advice to all of our clients and we typically draft both documents in most circumstances. However, it is worth reviewing what the key differences are.

While both documents serve essential estate planning functions, they operate in distinct ways, particularly under California Probate Code. Understanding these differences can help individuals make informed decisions about their estate planning needs.

What Is a Will?

A will is a legal document that specifies how a person (the testator) wants their assets distributed after death. According to California

Probate Code § 6110, for a will to be legally valid in California, it must meet the following requirements:

• It must be in writing.
• It must be signed by the testator or by someone else in the testator’s presence and at their direction.
• It must be witnessed by at least two individuals who were present at the time of signing.
  A will takes effect only after the testator’s death and must go through probate, the legal process of validating the document and overseeing asset distribution.

Pros of a Will

• Simplicity – A will is often easier to create and update compared to a trust.
• Cost-Effective – Drafting a will is generally more affordable than setting up a trust.
• Legal Clarity – California law provides clear guidelines on executing a valid will, making it a straightforward estate planning tool.

Cons of a Will

• Probate Process – Wills must go through probate court, which can be time-consuming and costly. Under California Probate Code § 8000, the probate process begins when an executor files a petition with the court, and it often takes months or even years to complete.
• Public Record – Probate proceedings are public, meaning anyone can access information about the deceased person’s assets and beneficiaries.
• Limited Control Over Asset Distribution – Wills only take effect after death and do not help in situations where a person becomes incapacitated.

What Is a Trust?

A trust, on the other hand, is a legal arrangement that allows a person (the trustor or settlor) to transfer assets to a trustee, who holds and manages them for the benefit of designated beneficiaries. The most common type is a revocable living trust, which allows the trustor to manage their assets during their lifetime and specify how they should be distributed upon death.

California Probate Code § 15200 outlines the requirements for a legally valid trust, stating that a trust can be created in several ways, including:

• A declaration by the owner that they hold property as a trustee.
• A transfer of property to another person as trustee.
• A will or other document indicating intent to create a trust.

Unlike wills, trusts do not go through probate and can help avoid the delays and expenses associated with the probate process.

Pros of a Trust

• Avoids Probate – Assets in a trust pass directly to beneficiaries without going through probate court. This saves time and legal fees.
• Privacy – Unlike wills, trusts are not public records. Estate distributions remain private.
• Incapacity Planning – If the trustor becomes incapacitated, the trustee can manage assets on their behalf without requiring court intervention.
• Control Over Asset Distribution – Trusts allow more flexibility in dictating when and how beneficiaries receive assets.

Cons of a Trust

• Higher Upfront Costs – Establishing a trust can be more expensive than drafting a will due to legal and administrative fees.
• Funding Requirement– A trust requires funding to take effect which means transferring assets into the trust’s name.
• Complexity – Trusts involve more legal intricacies and must be properly maintained to remain effective.

When Should You Choose a Will or a Trust?

The decision between a will and a trust depends on individual circumstances. A will may be sufficient for individuals with a small estate and straightforward asset distribution plans. However, for those with larger estates, minor children, or concerns about probate and privacy, a trust provides better control and flexibility. The goal of most clients is to avoid probate and to ensure that their estate is distributed privately so for most California residents, using a trust-based plan is ideal.

By proactively planning, individuals can protect their assets, ensure a smooth transition for loved ones, and avoid unnecessary legal complications. Whether choosing a will, a trust, or both, having a well-structured estate plan is key to securing your legacy.

At Kushner Legal Corporation we provide our clients with comprehensive advices in respect of their estate plans and provide complete packages to ensure that our clients are properly equipped with all of the documents that they may need.
Contact Kushner Legal Corporation today to schedule a consultation.