Personal Property
6 min read
How to Set Up a Living Trust: People and Considerations Involved
Personal Property
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 on February 23, 2022, and has been updated for accuracy, comprehensiveness, and freshness on May 21, 2026.
When it comes to planning for the future, two of the most important tools are a living trust and a will. While both help ensure your assets are distributed according to your wishes, they work in very different ways. Understanding the key differences can help you decide which is right for your situation—or whether you need both.
What is a will?
A will (also called a last will and testament) is a legal document that specifies how you want your assets distributed after you die, who should care for your minor children, and who you want to serve as executor of your estate. A will goes into effect only after your death and must go through a legal process called probate before your assets can be distributed.
What is a living trust?
A living trust (also called a revocable living trust) is a legal arrangement in which you transfer ownership of your assets to a trust while you’re still alive. You typically serve as the trustee during your lifetime, maintaining full control over those assets. When you die, a successor trustee distributes the assets according to the trust’s terms—without going through probate.
Key differences: living trust vs. will
Probate
One of the most significant differences is how each document handles probate. Assets distributed through a will must go through probate court, which can take months or years, incur fees, and make your estate a matter of public record. A living trust avoids probate entirely for assets held in the trust.
Privacy
Wills become public record once they go through probate. A living trust remains private, which can be important if you want to keep the details of your estate out of the public eye.
Cost to set up
A will is generally less expensive to create upfront than a living trust. However, the probate costs associated with a will can offset those savings for larger or more complex estates.
When it takes effect
A will only takes effect after death. A living trust takes effect immediately upon creation, which means it can also manage your assets if you become incapacitated before death—an important consideration for long-term planning.
What it covers
A will covers all assets that go through your estate—including property, accounts without beneficiaries, and personal belongings. A living trust only covers assets that have been formally transferred into the trust. If you forget to transfer an asset, it may still need to go through probate.
Should you have both a will and a living trust?
Many estate planning attorneys recommend having both. A pour-over will can work in tandem with a living trust, directing any assets not in the trust at the time of your death to be transferred into it. This provides a safety net for assets that weren’t formally moved into the trust during your lifetime.
How LegalShield can help
Deciding between a living trust, a will, or both depends on your assets, family situation, and estate planning goals. A LegalShield membership connects you with provider lawyers who can review your situation, explain your options, and help you create the right documents for your needs. After the document is in place, funding a trust is the step that puts your plan into action.
Explore LegalShield’s estate planning resources to learn more.
Frequently Asked Questions
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)
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.
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.
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.
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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