As a testamentary instrument, the living trust possesses attractive attributes, especially for elderly testators. For younger persons, the will is generally preferable as a testamentary device.
Property placed in a will passes automatically into the probate estate, where it may become the subject of an unpleasant will contest However, property placed in a living trust cannot become the subject of a will contest since it does not constitute part of the probate estate. Moreover, having begun operating before death, questions concerning the trust instrument, or the competence or mental capacity of the grantor are likely to have been resolved during the grantor’s lifetime.
A living trust, like other trusts, affords the grantor great flexibility in disposing of property and in making use of tax-favored planning techniques. A “revocable” living trust, as its name implies, may be modified or revoked before the death of the grantor, while an “irrevocable” living trust may not. Whether to make the living trust irrevocable depends entirely upon the tax and planning objectives of the grantor. Obviously, the grantor’s “comfort level” will be greater when a revocable trust is used.
Many of the legal tasks necessary to create a living trust in effect serve as a proxy for, and merely accelerate into the grantor’s lifetime, tasks that would otherwise have awaited probate administration. Although it may involve a significant present cost (when compared to merely drafting a will), the grantor of a living trust will be able to assist in many facets of its creation, and thus ensure that the task proceeds efficiently.
Despite its attractive features, the living trust has not supplanted the will as the first choice among most estate planning practitioners and testators in effecting testamentary dispositions. Many attorneys prefer the simplicity and versatility of the will. Nearly all of the flexibility of the trust can also be accomplished using trust provisions within the will. Nearly every tax benefit which can be achieved using a living trust can also be attained using a will. Probate is, in most cases, efficient and relatively quick.
Ministering to the needs of a living trust also requires a constant vigilance which testators who are not elderly are likely to find burdensome. In addition, any property not properly placed in the living trust during the testator’s lifetime will pass by will or intestacy anyway. For this reason, even when a living trust is used, a will is usually required to dispose of any property which the testator neglected to place in the trust. For these reasons, the will remains a superior testamentary vehicle for many persons.