Is It Better to Have a Will or a Living Trust?

How to decide when a revocable living trust might be better for you

Every South Carolina resident should have some form of estate plan. This typically involves creating either a will or a living trust. But what is the difference between the two? And does it matter which one you select?

Both documents allow you to name beneficiaries who will inherit your property after you die. Both documents are also flexible in that you can revise, amend, or revoke them at any time prior to death. Beyond that, however, there are some key differences between a will and a living trust.

How They Relate to Probate

Probate is the formal process of administering a deceased person's estate. In South Carolina, probate may occur with or without a valid will. If there is no will, the person is said to have died “intestate,” and state law determines the beneficiaries of the estate.

“Sometimes what the legislature has drafted for you isn't so bad, and who they say will handle the estate is who you would want. But sometimes that may not be who you want,” says Catherine H. Kennedy, at estate planning attorney at Turner Padget Graham & Laney in Columbia.

Depending on the size and complexity of an estate, a South Carolina probate proceeding can take several months—even years, in some cases—and involve substantial costs. This can delay the distribution of property to beneficiaries, as the estate must be properly closed first.

“Everybody needs a will,” Kennedy says. “It doesn't have to be a long one. A simple will is about seven pages, and it covers what it should. Even if the will says, ‘I give everything over to my trust,’ that's OK. You can do that. But the legislature doesn't know you have a trust, and they don't know that you might want to leave everything to the trust.”

If you want to avoid probate, she adds, “a living trust is a good way to do that. Some states’ probate procedures are onerous, like New York, and some are pretty simple. South Carolina is kind of in the middle.”

How They Relate to Privacy

Probate is a court-supervised process. As such, it is a matter of public record. This means in most cases, anyone could walk into the probate court and demand to see a copy of your will, or even a list of your probate assets, after you die. So if you value your family's privacy, a living trust may be a better option because trusts are usually not a matter of public record. Normally, only the successor trustee and the beneficiaries ever get to see the actual trust documents.

“When I was the probate judge, occasionally I'd have people I knew just coming in and looking at files,” Kennedy says. “And I’d say, ‘Do you have some business here?’ ‘No, I'm just being nosy. My neighbor died, and I wanted to see what they owned.’”

Which is Simpler to Set Up? Which is Cheaper?

If your goal is to keep your estate plan as simple as possible, you may find a will more appealing than a living trust. Trusts require a good deal of additional work to setup. For instance, you need to formally transfer any property—including real estate—into the trust. That said, both are relatively simple, Kennedy says. It’s more important to look at what makes the most sense for you.

“As I tell my clients, a lot of what you're paying me for is not so much the document itself, but knowing what documents you need and what provisions need to go in those documents and giving you alternatives,” Kennedy says. “I've got a friend that I'm helping right now. She's unmarried, no children, and she wants to leave things to a nephew whose marriage is rocky. And I said, ‘Is that really what you want to do, leave things to your nephew and then he ends up losing them in a divorce?’ And she says, ‘I hadn't thought about that. What are my alternatives?’ Well, a trust is a good alternative. That way, they aren't marital property to be divided in a divorce.”

A living trust will make your estate plan more expensive than just a will, Kennedy notes, but there are situations where it would be good to have—and even save you money.

“I had a client who had some property that was once rural, but car dealerships were then being built around it. So that property went from relatively low market farmland to commercial land, so its value had greatly increased. So we took the real estate and put it into her revocable or living trust just to avoid paying probate fees on that value. We probably saved $3,500 to $4,000 in probate fees on that value,” she says.

Another example where a trust might be apt, Kennedy says, is if you have real estate in multiple states that require going through probate again. “So you create a living trust, put that out-of-state real estate into that living trust, and it then passes not through probate, but pursuant to the terms of the trust when you die. So you avoid probate in the other state.”

Do You Need an Estate Planner?

The reason to seek out an experienced South Carolina estate planning attorney is not simply for knowing how to draft these documents, but how to customize the plan to you.

“What an estate planner does is teaches people about the implications of what they're doing and gives them alternatives. So that might be a living trust; that might be a will only; that might be a combination of the two,” says Kennedy. “Lots of complexities go into determining what's best for each client, and each client is different. It’s like solving a jigsaw puzzle.”

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