Back to The Basics: The Difference Between a Will and a Trust
The legal vernacular is quite confusing. I understand that. However, it is difficult at times for attorneys to take a step back and realize that quite a few of the terms we know and use everyday may be confusing to the general public. I place zero blame on the general public, but rather on the wordsmithing of lawyers everywhere. And we are all guilty; myself included. Some of the words and phrases used by attorneys are legally operative terms that have distinct legal consequences, whereas other terms are simply used interchangeably. Throw into the mix the fact that a word can evolve over time into a completely different word with the same meaning, and you have a general public that has every right to be a little unclear on a few things.
Probably the most common question I get from clients looking to do a basic estate plan is what is the difference between a Will and a Trust, and what is the difference between an Executor and a Trustee. Like most legal vocabulary questions, this is very common, and very simple to explain.
WILL V. TRUST Both documents are core estate planning documents used primarily to transfer the assets of a deceased individual to their beneficiaries, and to appoint an agent to act on their behalf to do so, but that is about it on similarities. A Will can best be thought of as a declaration of a deceased person. Clearly the beneficiaries or executor (we'll get to this definition later) of a Will would be unable to walk into a bank and withdraw the assets of a deceased individual, and as so, this "declaration" (Will) is used, but that same banker will not act upon the presentation of a WIll either. Enter the Probate Court. A Will is always taken through the Probate Court system, which results in a judge effectively monitoring the transfer of the assets of the estate to the beneficiaries. This Probate process is notorious of its length and expense, to the point where it commonly sought to be avoided. A Trust, however, is a separate entity rather than a declaration of a deceased individual. The person creating the Trust does make declarations, but they essentially act as bylaws or an operating agreement of the entity, and affect all of the assets transferred to the trust during the person's lifetime. The beauty of the Trust, is that it does not go through the Probate process. As part of the trust creation process, the creator names successor "Trustees" to act as stewards of the Trust assets after a client (who acts as the initial Trustee), is unable to do so himself (by reason of death or incapacity). The Successor Trustee then has management and control over trust assets, and has the legal authority and access to distribute the estate consistent with the terms of the trust as made by the deceased individual, without any court involvement whatsoever. Another big difference is that a Trust can also take effect while the creator is still alive but incapacitated(Successor Trustee management of trust assets).
EXECUTOR V. TRUSTEE I kind of leaked these terms earlier in the post, but an Executor is essentially the appointed individual to manage the affairs of the estate where a Will is the governing document. A Trustee is the functional equivalent, but for a Trust. An Executor is working closely with the Probate Court to carry out their duties, whereas a Trustee acts privately. An Executor only acts upon death, whereas by virtue of the nature of a Trust, a Trustee can also act while the Creator is still alive but not acting as their own trustee (if they were to be incapacitated). One last item of note: Occasionally attorneys, myself included, may use the term, "administrator" to describe either the Executor or the Trustee....essentially referring to the individual that will be handling these types of affairs.