Living Trust vs Will — Know the Key Differences and Which One You Need
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Editor's note: This post was originally published Aug. 29, 2023, and has been updated for accuracy, comprehensiveness and freshness on May21, 2026.
If you’re working on your estate plan, you’re probably having to compare a Living Trust vs. a Will. While both are useful, the difference between a Will and a Trust can sometimes make one a better option over the other.
Choosing which one isn’t a question based on wealth, but more about your wishes after you pass away. To decide which option suits you, it helps to first understand what a Will and a Trust are and how they work.
What is a Living Trust?
Most Living Trusts are revocable Trusts, meaning the creator of the Trust can change the terms of the Trust during their lifetime.
An objective of many Living Trusts is to help pass property to heirs without going through probate. It also allows the Trust’s creator to retain control over that property.
What is a Will?
A Will is a legal document that describes someone’s wishes about the distribution of their assets. It also selects who can serve as the personal representative or executor of the deceased’s estate. This is the person who will carry out the wishes set out in the Will.
Benefits of having a Will
Considerations of a Will
- Fairly affordable to prepare and execute.
- Can reduce confusion and fighting after the deceased passes away.
- Easy to modify as circumstances change.
- Often requires a court probate process.
- Contents in a Will are usually part of the public record.
- A Will doesn’t cover what happens when the creator of the Will becomes incapacitated.
Living Trust vs. Will: The main differences
When deciding if you need a Will or a Trust, it’s best to examine the primary differences between the two. Depending on your needs, you can decide which is best for your situation.
Who controls your assets and when
The decision of choosing a Will or Trust will sometimes boil down to what level of control you need over your property. A Living Trust can decide how property should be used after you die or if you become incapacitated. A Will might only allow you to decide who gets your property when you die. If you get a lawyer’s help, you can set up a Will to create a Trust within it.
What happens in probate, or whether probate is needed
One of the biggest benefits of a Living Trust is that property inside that Trust can avoid the probate process. In contrast, property distributed as required by a Will must go through probate. This usually means it takes much longer to pass down the property.
What stays private
Property passed down using a Living Trust has greater privacy because it usually doesn’t go through a court. Wills must usually be probated, which makes them part of the public record. If you use a Will, anyone can learn about who receives what from your estate.
Keep in mind that a Will only becomes part of the public record after the creator of that Will dies and it gets filed with the probate court.
How fast your loved ones get access to your estate
The probate process is slow. Depending on the estate, the probate court, and any legal issues, probate can last six months or longer.
This is a long time for property to get tied up, and it can often be avoided when using a Trust as opposed to a Will to pass down property.
Cost and maintenance
These are often the most important considerations during the estate planning process. Living Trusts are typically more expensive to set up and maintain than Wills. However, probates can be costly and exceed what it would cost to set up a trust.
It’s usually harder to write a Living Trust than it is to write your own Will, due to the complexities of the required language required by law. Also, if you are married, a joint trust adds another level of complexity.
Should you choose a Living Trust or a Will?
Let’s take a deeper look at the pros and cons of a Living Trust vs. a Will. Below is a summary of each, and when you might want one or both:
- When a simple Will might be enough: Wills are great if you don’t have significant property to pass down. Wills are also good if you don’t anticipate significant estate changes. Compared to Trusts, Wills often go unchanged after being written, unless there’s a significant life event like a divorce or remarriage.
- When a Trust makes more sense: If you want to pass down property without using probate court, then a Living Trust is probably the tool you need. This offers more privacy and speed when passing down property to others after you pass away.
- When to use both for complete coverage: If you want to avoid probate court, you can put as much property as possible into a Living Trust. Then use a pour-over Will to distribute property not placed into the Living Trust. This might happen if you forget to add property to a Trust, or certain property can’t be placed in a Trust. This doesn’t avoid probate on the assets that are not in the trust, but through a Pour Over Will, the court may order that those assets be dumped into the Trust at the conclusion of the probate, and then the terms of the Trust will control how those assets are disbursed.
Give your family peace of mind with a Living Trust or Will
Choosing between a Living Trust vs. a Will can sometimes be confusing. Luckily, you don’t have to try to figure things out all by yourself when you have a LegalShield Personal Plan.
With LegalShield, you get to work with a provider lawyer to create the estate plan you need. A lawyer can guide you on how to prepare a last Will and testament, create a Trust, or see if there’s another option to consider for your estate plan. Contact LegalShield today to get started.
Frequently asked questions
What assets cannot be placed in a Trust?
The answer depends on what type of Trust you’re using and what state you’re in. It is important to review your assets with a lawyer during estate planning and discuss which assets can be transferred to a Trust. Assets like the ones listed below should be specifically discussed with a lawyer:
- Health and medical savings accounts (doing so negates any tax benefits from the HSA or MSA)
- Existing retirement accounts, such as an IRA (doing so can be considered a withdrawal and lead to taxes and early withdrawal penalties)
- Foreign property (depends on where the property is located, though)
Is a Living Trust better than a Will?
A Living Trust has features that a Will lacks, such as avoiding probate and increased privacy. But it also has potential drawbacks, such as more complexity and cost. Wills can also be complex, depending on how much control you want over the assets that are being distributed.
Can I have both a Will and a Living Trust?
You can have both, but you’ll probably want to consult with a lawyer first to confirm you need them. Depending on your estate needs, you might only need one or the other. As part of your LegalShield plan, a provider lawyer can help you decide exactly what you need.
Can I make a Living Trust without a lawyer?
Yes, you’re allowed to create a Living Trust without a lawyer. However, you should consult with a lawyer for assistance. Each state has its own laws on Trusts, and a simple mistake could invalidate the Trust. Consulting with a lawyer can help avoid these mistakes. With LegalShield, you can pay a low monthly fee and get access to a provider law firm for all of your estate planning questions.
What’s the difference between a revocable and an irrevocable Trust?
A revocable Trust is a Trust that the creator of the Trust can change at any time. An irrevocable Trust is a Trust that the creator can’t change or modify, except in rare circumstances with court approval.
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