What is the difference between a trust and a will?

Windrose Law Center PLC Profile Image

Windrose Law Center PLC

Scottsdale, AZ

Practice Areas

Estate Planning

What is the difference between a will and trust?

There are many differences and some similarities between a will and a trust. This article discusses some of those differences and similarities. Everyone's situation is unique, so for legal advice about which is best for you, you should speak with an experienced estate planning lawyer, many offer free initial consultations.

What is a will?

A will is a document that specifies who will receive your assets when you pass away. The legal name for a person when they execute a will is called a Testator. The legal name of the person who a Testator places in charge of their estate is called a Personal Representative in Arizona. In some states, a Personal Representative is also known as an Executor. Testators decide in their will a number of things to happen after they pass away including:

  • Who will receive their assets
  • Who should be in charge of administering their estate when they pass away. Many times Testators choose someone they know is responsible and good with finances. With a will, the Testator can also choose to have more than one person be in charge of their estate. This person is called a "Personal Representative."
  • Who will take over the care of their minor children. This person is called a "Guardian."
  • Who will take over handling their minor children’s assets. This person is called a "Conservator."

Wills are essentially instructions to a probate court about these decisions. Wills do not avoid probate. If you just have a will, when you pass away your assets will likely have to go through the court supervised estate administration process called Probate.If you were to pass away without a will, the probate court would also get involved and your estate would pass according to Arizona’s laws of intestacy. This sets out the order of who assets are distributed to. If you do not have any heirs on the list provided for in the state statutes, your estate will escheat to the state, meaning that your assets would go to the State of Arizona.

What is a trust?

A trust document is a written document that is signed by the person who makes the trust. This person is called the "Settlor." The trust will list the property in the trust as well as the person in charge of the trust called the "Trustee." With a Living Trust, usually the person making the trust also retains control of the trust while the person who made the trust is still living. It also specifies a successor trustee to take care of the trust after the person who made the trust passes away or if they become incapacitated. The Trust will also specify who gets the property in the trust when the Settlor passes away.

Differences and Similarities

With both wills and revocable living trusts you can:

  • name who gets your property
  • leave property to a child
  • make changes during your life any time you want

Things a trust can do that a will cannot:

  • avoid probate
  • reduce the chance of a court dispute over your estate
  • prevent the need for a conservator to be appointed by a court for property left to a minor
  • keep your document private after death

Things a will can do that a trust cannot do:

  • name guardians for children
  • name a conservator (who will report to the court annually) for children’s property

Revocable Living Trusts Avoid Probate

Most people use living trusts to avoid probate. Probate is the court-supervised process of wrapping up a person’s estate. Probate can be expensive and time consuming. There are numerous fees and expenses associated with probate which are avoided by using a living trust.

Special Abilities of a Trust

A living trust is a flexible document because you can specify who gets what property when you pass away and how. For example, you can withhold distributions until the person getting your property reaches a certain age or finishes school.

Transferring Property Into the Trust

It is easy to put assets into your trust. You can put your house into a trust using a deed. You could put your bank accounts in the trust by re-titling them in the trust's name. It must be done correctly or the property could end up in probate. Many lawyers skip this step in the estate planning process but it is very important!

Deciding what is best for you should be done in consultation with an experienced lawyer. There is no "one size fits all" document that you can get online because everyone's situation is unique.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
Get Professional Help

Talk to an Estate Planning attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you