After 35 years in finance, I continue to meet new generations of individuals who are confused about the difference between a will and a living trust. It's one of the most common questions I hear—and one of the most misunderstood aspects of estate planning.
Let’s clear up one myth right away. Having a will does not avoid probate. In fact, a will guarantees your estate will go through probate. It’s essentially a set of instructions for the court system to follow after you pass away. And if you’ve never had the displeasure of navigating probate, let me tell you—it’s not fun. In this blog, I’ll address the difference between a will versus a living trust and how to determine which is best for you. I’ll also discuss different ways to own assets, such as tenants in common, joint tenants with rights of survivorship, Transfer on Death (TOD) and more. Finally, you’ll learn about our digital estate planning services—solutions we offer exclusively to our clients to help them protect what matters most and ensure their wishes are carried out with ease, clarity and care.
Put simply, a will is a legal document that tells the court how your assets should be distributed after your death. A trust, on the other hand, is a private agreement you establish with a trusted individual (or entity) to manage your assets, and it can take effect during your lifetime or after. While there are many types of trusts, the most common alternative to a will is the revocable living trust. As you'll see in this paper, a revocable trust can offer several advantages that a will cannot.
Will = Probate
In movies, there’s often a climactic moment where the family gathers to hear the dramatic reading of the Will, revealing who inherits what. But in real life, that’s not how it works. Wills aren’t read aloud in some grand scene. Instead, the executor simply distributes a copy to all known beneficiaries.
Theatrics aside, the very nature of a will is to direct your assets through the probate process. Probate is the legal process of determining what you own (assets), who you owe money to (creditors) and who gets what as a final settlement of your estate (beneficiaries). The process of probate is very public – after all, the purpose is to make it clear that you have passed away and anyone who wishes to make a claim to your estate can come forward to legally make their claim. Therefore, the first step is to post an obituary or death notice to let it be known publicly that you have passed away. The obituary serves as an informal announcement that initiates a wave of legal and emotional steps to follow.
Once the death is recorded, the process formally begins with the filing of the will and a petition for probate in the local court. If there is no will, the court appoints someone, usually a close relative, to serve as the estate’s administrator. In cases where a will exists, the court must first confirm its validity. And this is also where things can get interesting, because anyone with standing can contest a will. That includes estranged family members, disgruntled heirs, or even unexpected individuals who believe they were promised something—or claim to be owed something.
This is where a neighbor can swear you verbally promised him your truck, or where an ex-boyfriend or partner suddenly produces an old will and claims you promised them your house. In one real-world example, a man came forward after his mother's death claiming to be the product of a long-ago affair (aka her “love child”) and argued he was entitled to a share of the estate. In another, a caregiver contested a will that had been updated just weeks before the individual’s death, claiming she was promised half of the estate.
Courts take these challenges seriously. Even if a will appears to be properly executed, a formal objection can delay probate for months—or even years—while the court investigates the claim. A contested will doesn’t have to succeed to cause problems; it only has to raise enough doubt. The court’s role is to determine whether the document truly reflects the intent of the deceased, and whether the person had the mental capacity and freedom from undue influence when it was created.
Here’s the critical point: a will is either accepted in full or rejected in full. The court does not go line by line deciding which parts to honor and which parts to discard. If there is enough ambiguity or concern about the validity of the document, whether due to conflicting versions, vague language, or questionable circumstances, the entire will can be tossed out. At that point, the estate is distributed according to state intestacy laws, which may be entirely contrary to what the decedent intended.
Next, the court officially appoints the executor named in the will—or, if no will exists, an administrator chosen by the court—and issues legal documents called Letters Testamentary or Letters of Administration. These documents give the appointed individual legal authority to act on behalf of the estate. Before issuing these letters, the court may require the executor or administrator to obtain a fidelity bond (also known as a probate bond). This bond acts as a safeguard, protecting the beneficiaries from potential mismanagement or misconduct by the executor. Whether a bond is required depends on state law and whether the will explicitly waives it—many well-drafted wills include such a clause.
Once appointed, the executor steps into a fiduciary role and becomes fully accountable to the probate court. This is not a casual or honorary title—it’s a legal obligation. The executor must maintain detailed and accurate records of every action taken on behalf of the estate, including bank statements, receipts, bills paid, assets sold, and distributions made. These records must be organized and available to submit to the court upon request, and in many cases, the executor is required to file formal reports or accountings at various points in the process. Failure to do so can result in delays, legal consequences, or even removal from the role.
In addition to these responsibilities, the executor is often required to appear in court multiple times—to open the probate case, seek approvals for certain actions, respond to any contests or objections, and eventually request approval to close the estate. The process can be time-consuming, stressful, and legally complex, especially for someone unfamiliar with probate procedure or who lives out of the area.
The executor must inventory everything the deceased owned: real estate, bank and brokerage accounts, retirement funds, personal property, vehicles, and business interests. Some assets may require formal appraisals to establish fair market value. With this inventory in hand, the executor must use estate funds to pay all legitimate obligations—outstanding debts, funeral expenses, taxes owed, and any approved creditor claims. If the estate lacks sufficient liquidity, the executor may need to sell assets to cover these expenses.
The executor prepares a final accounting for the court, documenting every transaction—what came in, what went out, and what remains. Once approved, the final step is distributing what’s left of the estate to the rightful heirs and beneficiaries, according to the will or, if there is none, according to the state’s intestacy laws. Titles are transferred, accounts are closed, and personal items are passed along. The estate is then formally closed, and the executor is released from their duties, marking the official end of the probate process.
Once a will is submitted to probate, it becomes part of the public record. That’s how the media often uncovers the details of a celebrity’s estate—not through inside sources, but by accessing court documents. In fact, anyone can visit the county courthouse and request to see the contents of a probate file, which may include the deceased’s assets, debts, named beneficiaries, and other personal information.
While most of us spend our lives guarding our personal information, death can suddenly make everything public. Once an estate goes through probate, private details—assets, debts, and who gets what—become part of the public record. For many, that level of transparency feels intrusive and unnecessary. This concern alone is often enough to lead individuals to structure their estate plan around a revocable living trust rather than relying solely on a will.
And this is where confusion often begins. Many assume that having a will keeps things simple, but it doesn't because of probate. In contrast, a living trust generally bypasses the probate process entirely, helping preserve privacy and streamline administration. But privacy is just one benefit. There are many additional advantages to using a revocable trust and understanding them could help you decide whether it’s the right choice for your estate plan.
Just because many Americans rely on a Will doesn’t mean it’s the best choice for you. Depending on your goals, circumstances, and concerns, a Revocable Trust could offer far more flexibility and peace of mind.
A Revocable Trust (also called a Living Trust) offers several advantages beyond privacy. In fact, the reasons people choose a trust often fall into four key categories:
• Avoiding the court process when you pass
• Keeping your estate plan confidential
• Planning ahead in case of incapacity
• Becoming familiar with the language of trusts
If, after we dig deeper into each of the differences, you’re still not sure, take our quiz here.
Avoiding the Court Process at Death
Arguably, the main reason people choose a Trust is to simplify the court process that happens at death – to avoid probate. As noted, if you die with a Will, a probate judge will oversee how your assets will be distributed. This process can be difficult and expensive and take a long time. Therefore, if one or more factors indicate that probate will be more onerous for your estate, you should consider putting in place a Trust to avoid probate, such as:
(a) You live in a state that tends to have a complicated or expensive probate process.
In all states, the probate process comes with costs, delays, and a loss of privacy—but the severity varies. Some states base court and filing fees on the total value of your estate, which means the more you own, the more probate can cost. In addition, attorney fees, often necessary to help your executor navigate the court process, can range from a few thousand dollars to tens of thousands, depending on the complexity of your estate and local rules.
All of these expenses are paid from your estate before anything is distributed to your heirs. Even if your assets aren’t particularly complicated, probate can still tie up your estate for several months to well over a year. In states where probate is especially slow or expensive, a revocable living trust allows you to bypass much of the court process, giving your chosen trustee immediate authority to act, without waiting on judicial approval.
(b) You own real estate (or tangible objects of significant value, such a boat, RV, etc.)*
This is a critical factor in deciding whether a living trust might be right for you. Real estate and high-value tangible assets (especially those titled in your name alone) are counted at their gross value for probate purposes. That means the probate court doesn’t care how much equity you actually have; it looks at the full fair market value of the property when determining whether your estate qualifies as “small” or needs to go through formal probate.
For example, if you own a home worth $800,000 with a $600,000 mortgage, the probate court still counts the home as $800,000. That can push your estate well over your state’s small estate threshold, even if your actual net worth is much less.
The same logic applies to high valued tangible assets like a boat, RV, art collection, or rare vehicle. If those items are titled in your name and not held in a trust, they may trigger full probate, require appraisals, and even create disputes among heirs over who gets what or how those assets should be sold or divided – even if you owe more than the asset may be worth! Remember, the title generally cannot be changed without probate.
(c) You own real estate that is located in a state other than your home state*
Owning property in multiple states is more common than ever. Whether it's a second home, a vacation rental, or inherited land, having property beyond your state line can be difficult when it comes to title changes upon death. What many people don’t realize is that when you pass away with only a will, your estate must go through separate probate proceedings in each state where real estate is located. This is known as ancillary probate, and it can significantly complicate the settlement of your estate.
Each state has its own probate rules, filing fees, court timelines, and tax requirements. That means your executor may have to hire additional attorneys in those states, file more legal paperwork, and wait on multiple courts—all of which add time, stress, and expense to the process.
However, if that out-of-state property is titled in the name of your revocable living trust, there’s no need for an additional court process. Your trustee can manage, sell, or distribute the property without ever involving the probate court in that state. This not only simplifies estate administration but also protects your heirs from unnecessary legal costs, delays, and jurisdictional red tape. In other words, when real estate crosses state lines, so does probate.
(d) You own assets that are complex and may require more active court supervision that you want to avoid, like stock that is not publicly traded.
If your estate includes assets that are not easily valued or transferred—such as privately held business shares, LLC interests, promissory notes, or non-publicly traded stock—your executor may face additional court scrutiny. These assets often require formal appraisals, legal review, or special documentation to transfer ownership, which can slow down probate and increase legal costs.
By placing these assets in a revocable living trust, your trustee can manage and distribute them without court involvement, keeping the process more efficient and private. If you own anything beyond basic financial accounts—especially business or investment-related assets—a trust can offer the flexibility and control that probate simply can’t.
If you anticipate that probate would be costly and time-consuming for your loved ones, a Revocable Trust might be the best option for you.
*If you place the real estate or personal property in an entity like a limited liability company (LLC), you may also be able to avoid probate, but that analysis must be done by an attorney licensed to practice law in the state where your real estate or personal property is located.
Keeping Your Wishes Private
As part of the probate process, a Will becomes part of the public record. Revocable Trusts typically avoid probate (unless there is an issue like an angry family member who brings a legal claim against your Trust). With a Revocable Trust, your estate plan is more likely to remain private.
Information that will become public if part of your Will include:
(a) Who you consider to be your family members.
(b) Who you want to exclude from receiving your assets or having a trusted role in your estate plan.
(c) Who will receive your assets, and how much of your assets they will receive.
(d) How you would like your last remains to be handled.
If you would prefer to keep these details private, a Revocable Trust might be the best option for you.
When They Become Effective
A Will does not become effective until you die, whereas a Trust is effective immediately on the day you create it. As a result, a trust has legal effect before your death – i.e., while you are alive but either incapacitated or unavailable. If it is important for you that someone take over responsibility for your financial affairs immediately if something were to happen to you, then a Revocable Trust gives you a more powerful vehicle compared to a Will or a financial power of attorney.
Ensuring that “it’s business as usual,” can be especially important if you own a closely-held business and you are expected to be involved in the day-to-day operations or in making high-level decisions by voting your shares. Your succession planning for your business should include transferring your shares into a Trust so that your trustee can step into your shoes if something happens to you.
Learning a New Set of Words
A Trust can be used as an alternative to a Will, but the vocabulary will be different and less familiar to most people, which contributes to the feeling that Trusts are more complicated than Wills. For example, instead of referring to an “executor” or “personal representative,” the trusted individual who will manage your affairs is called a “trustee.”
That being said, if there are factors indicating that you should have a Revocable Trust, you should not let legal terms discourage you from using a Trust as the centerpiece of your estate plan.
When There Are Minor or Special Needs Children
When minor beneficiaries are involved, a living trust can offer significantly more protection and control than a simple will. Unlike a will—which may distribute assets outright or require a court-appointed guardianship until the child turns 18—a living trust allows you to appoint a trustee to manage the assets according to your instructions, potentially well into adulthood. This ensures that funds are used responsibly for the child’s health, education, and well-being, and not handed over in full at a young age when financial maturity is unlikely. It’s a powerful tool for safeguarding a legacy with intention and oversight.
A Word About Blended Families
In blended families, where there may be children from prior relationships, a trust can offer far more clarity and control than a standard will. A will may unintentionally disinherit children or create conflict between a surviving spouse and stepchildren. A trust allows you to specify exactly how assets are to be managed and distributed—providing for a surviving spouse during their lifetime while preserving inheritances for your own children. It helps avoid misunderstandings, reduces the risk of disputes, and ensures your intentions are honored across complex family dynamics.
Later in Life Marriages
In later-in-life marriages, a living trust can strike the right balance between caring for a surviving spouse and preserving inheritance for adult children. For example, the trust can allow the spouse to live in the family home for the rest of their life, while ensuring the property ultimately passes to the original owner’s children. This avoids forcing a move during a vulnerable time, yet protects the intended legacy—something a simple will often fails to manage as effectively, especially when emotions and competing interests are involved.
What Are Common Misconceptions about What a Trust Can Do For Me That a Will Can’t?
1. If I have a Revocable Trust, you won’t need a Will.
Even if you have a Revocable Trust, you will still need a Will. If you pass away with any assets in your own name, you need a Will to make sure all of those assets go into your Trust, where the Trust will instruct where those assets will go. This type of Will, which accompanies a Revocable Trust, is much shorter than a standalone Will and is commonly known as a “pour-over Will.” This is important because some assets must be owned in your own name while you’re alive, like a retirement account, and you may not get around to putting all your assets in the name of your Trust before you pass away.
You will also need a pour-over Will to name an executor and guardian(s) for your children, if any.
2. As long as I have a Revocable Trust, my loved ones will definitely avoid probate.
A Will must go through probate, whereas a Revocable Trust has the opportunity to avoid probate.
First, you will need to “fund” your Trust, which means transferring as much of your assets as possible into your Revocable Trust. Some courts, like in California, may allow you to avoid a full-blown probate if you show that you intended to fund your trust by signing a general assignment of all your assets into the trust. Other states will instead require that you actually re-title any real estate and change the owner on your bank accounts and other assets.
Lastly, the probate court may become involved to resolve any issues among your beneficiaries or trustees. For example, someone may call into question whether your Will and Trust are not valid.
3. A Revocable Trust will make it harder for someone to sue my estate.
We all fear that someone will be unhappy with the wishes of the decedent or how the estate administration is being handled and bring a lawsuit against the estate. Having a Revocable Trust instead of a Will will not deter a motivated person from suing against your assets at your death.
Note that a Revocable Trust should not be confused with an Irrevocable Trust, which may offer some level of asset protection. Asset protection means that a creditor (for example, someone to whom the Trust beneficiary owes money for an accident) may not be able to reach the Trust assets because the assets are considered to be separate from the beneficiary and cannot be used to fulfill the beneficiary’s debt.
4. If I anticipate that my estate will owe death taxes, I must have a Revocable Trust.
Tax planning for estate and generation-skipping transfer taxes can be accomplished with either a Will or a Revocable Trust as the centerpiece of your estate plan. You do not need a Revocable Trust just because you may have a death tax issue. The important thing is to make sure your Will or Trust has the proper provisions to meet your tax planning goals. Your Will or Trust must create Trusts after you’ve passed away (a testamentary sub-Trust) that comply with the Tax Code and direct your assets into those sub-Trusts using rules or formulas that will minimize taxes in the long term.
Sub-Trusts are Irrevocable Trusts created at your death and are not to be confused with Revocable Trusts that you create while you are alive as an alternative to writing a Will.
5. My accounts are titles as Joint Tenants with Rights of Survivorship (JTWROS) so, therefore, there will be no probate.
While this is true, in JTWROS, when the first owner dies, their interest automatically passes to the surviving owner(s), bypassing probate. It seems simple, but it lacks flexibility. It overrides your will or trust and may unintentionally disinherit others (e.g., children from a first marriage). It also exposes the asset to the surviving owner’s legal or financial troubles. When the surviving owner, such as a spouse, passes away, the account may then be subject to probate.
6. I have beneficiary designations through a Transfer on Death (TOD) for my accounts.
TOD designations let you name a beneficiary for certain accounts (like brokerage or bank accounts), allowing them to receive the assets directly upon your death without probate, similiar to life insurance and retirement accounts. While this can be efficient, this may bypass your estate plan entirely so if beneficiaries are minors, incapacitated, or predecease you, it can create complications or unintended results. TODs also don’t coordinate with your trust or account for taxes, remarriage, or changing needs. Furthermore, you cannot designate assets such as real estate or high valued cars, RV, art and so on via TOD so those assets may be subject to probate.
7. I have established an account as Tenants in Common so I will avoid probate.
With tenants in common, two or more people own a property or account together, but each person’s share is separate and can be passed on to heirs through their will. This might be helpful if there are children from another marriage or if you don't want the join tenant to automatically inherit the account, however, if one owner dies, their share goes through probate. That delays access, invites potential disputes, and exposes the asset to creditors or contested claims.
The Bigger Issue
These tools might avoid probate in isolated cases, but they don’t create a comprehensive, coordinated plan. They don’t address incapacity, tax planning, remarriage protections, or long-term care. Worse, when used incorrectly or inconsistently, they often conflict with your estate plan—undermining everything you thought you had in place.
8. If I would like more control over how my assets are used after my death or keeping my assets within my family across generations, I must have a Revocable Trust.
If you would like to maintain some control over how your assets are used or gifted away after your death, you should make sure sub-Trusts (see 4 above) are created after your death. To create this type of sub-Trust, you can use either a Will or a Revocable Trust as the centerpiece of your estate plan.
Sub-Trusts are Irrevocable Trusts created at your death and are not to be confused with Revocable Trusts that you create while you are alive as an alternative to writing a Will.
Certain estate planning tools exist to deter someone from suing your assets, including “no contest” or “in terrorem” clauses. These tools can be implemented in a Will or a Trust with the advice of an attorney.
The chart below summarizes the overlap and differences between a Will and a Revocable Trust in most U.S. states.
Bringing It All Together
Deciding between a will and a trust isn’t just about legal documents—it’s about how you want your legacy handled, your loved ones supported, and your privacy preserved. While a will may be sufficient for some, a revocable living trust offers greater control, efficiency, and peace of mind—especially if you own real estate, value privacy, or have a more complex financial picture.
At Longevity Capital Management LLC, we help our clients navigate these choices as part of a comprehensive financial plan. Through our partnership with Wealth.com, we provide access to secure, digital estate planning tools—so you can create, organize, and maintain your plan with confidence. These services are available exclusively to our clients because protecting your future isn't just about investing—it's about making sure everything you’ve built is passed on smoothly, privately, and exactly as intended.
Please note: We do not provide legal advice. Estate planning services are offered through our vetted partners, and all documents should be reviewed by a qualified estate attorney when a