Approximately 60% of Americans do not have either a will or living trust, leading to numerous problems for heirs upon their death.

Generally, a trust exists when a person, or the grantor, gives property to another, the trustee, to hold and manage for other persons, called beneficiaries. A living trust is one that can be amended or revoked by the grantor during his or her lifetime and he or she maintains all benefits of the property placed into the trust. Advantages to creating a living trust instead of a will include avoiding probate and its ensuing costs and privacy in administration. However, a living trust is more time consuming than creating a will and will not be supervised or reviewed by a court.

A will, though less expensive to create, is subject to probate and therefore additional costs such as court costs, appraisal fees, executor’s commissions, and attorney fees. In addition, terms of a will, including names of beneficiaries, are a matter of public record once it is filed with the probate court. Even when a living trust is created, a will is still necessary, as it is the appropriate document to name guardians of minor children or to name an executor to allocate assets not transferred to the trust during the grantor’s lifetime.

Heirs and beneficiaries can challenge the validity of both living trusts and wills, though the time periods in which to do so differ. A living trust can typically be challenged for up to two years, while contesting a will must be done within three months. These documents can be found invalid for incompetence at the time of creation or for undue influence from others.

Consulting with an attorney can help determine whether a living trust or will is more appropriate and likely to accomplish personal goals. Though many online companies offer assistance in creating wills or trusts for a small fee, these services usually lack the ability to handle complex estates. Other inexpensive estate planning resources can be found through Legal Aid and Bar Associations.

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