The following shows the defining differences between a Living Trust, A Will and not having any protection at all!
At Incapacity (unable to handle your financial affairs)
With No Will
Court Control: Court appointee oversees your care, must keep detailed records, reports to court and usually must post bond (even if appointee is your spouse). Court approves all expenses, oversees financial affairs.
With A Will
Court Control: Same as No Will
With a Living Trust
No Court Control: Your Successor Trustee manages your financial affairs according to instructions in your Trust for as long as necessary. (In some states court intervention may be required for health care decisions).
At Death
With No Will
Probate: Court orders debts paid and assets distributed according to state law.
With A Will
Probate: Same as no will, but assets distributed per your will (if valid and no contests are successful).
With a Living Trust
No Probate: Debts paid and assets distributed by Successor Trustee according to instructions in your Trust.
Court Costs and Legal Fees
With No Will
At Death: Often estimated at 3% – 8% of estate´s value. At Incapacity: impossible to estimate.
With A Will
At Death: Same as No Will. Costs can increase if will is contested.
With a Living Trust
At Death: Usually none if no estate taxes. At Incapacity: None. (Attorney can be helpful for larger estates).
Time
With No Will
At Death: Usually 9 months to 2 years before heirs can inherit. At Incapacity: Court involved until recovery or death.
With A Will
At Death: Same as No Will.
With a Living Trust
At Death: Usually just weeks (larger estates may take longer for estate tax filing). At Incapacity: No delays.
Flexibility and Control
With No Will
None: Court processes, not your family, have control at incapacity and death. When you die, assets are distributed according to state laws.
With A Will
Limited: Same as No Will except, when you die, assets are distributed according to your will (if valid and no contest are successful). You can change your will at any time.
With a Living Trust
Maximum: You can change/discontinue your Trust at any time. Assets stay under control of your Trust, even at incapacity, AND after your death. More difficult than a Will to contest.
Privacy
With No Will
None: Court proceedings are public record. Family can be exposed to disgruntled heirs, unscrupulous solicitors.
With A Will
None: Same as No Will.
With a Living Trust
Maximum: Living Trusts are not public record. Your family can take care of your financial affairs, privately.