Do I Need a Will or a Trust?
Written by Law on Call Staff |Last Updated September 5, 2025
Understanding the difference between wills and trusts is key to making sure you have the estate plan you need.
Not sure where to start? Our guide will help you figure out which way to go.
Main takeaways
- Wills and trusts are both estate planning tools.
- A will is a more simple document that most adults should have in place. A trust is a more complex document whose relevancy is situation-dependent.
- Trusts generally avoid probate court, while wills do not.
wills vs. Trusts
Both important estate planning tools, testamentary wills and revocable living trusts go into effect at different times, interact with probate court differently, and have varied levels of complexity.
Wills
Testamentary wills tend to be fairly simple documents in which you can name guardians for minor children and dictate who assets should go to.
A will becomes active only after the testator’s (will writer’s) death, and must pass through probate court.
Testamentary wills at a glance:
- Can name guardians of minor children
- Can be challenged in court
- Go to probate court
- Can include limited inheritance rules
- Become active after death
- Are in the public record
- Don’t require property transfer
- Can be revised
Trusts
Living trusts are more complex than wills, holding assets until distribution. These assets fund the trust, meaning the trust becomes their owner.
Trusts don’t pass through probate court and become active when the trustor signs the agreement.
Revocable living trusts at a glance:
- Can name guardians of minor children
- Usually can’t be challenged in court
- Don’t go to probate court
- Can include inheritance rules
- Become active upon signing
- Are not in the public record
- Require property transfer
- Can be revised
Choosing Between a Will and trust
Deciding whether you need a will, a trust, or both can be a multifaceted and ongoing process. Knowing your options is the best way to ensure you choose a plan that works for you and your loved ones.
Remember that the estate plan you need today may be different from the plan you need months or years from now. If you start out with a will, you might decide to add a trust down the line.
Is a will or a trust better?
Neither a will nor a trust is inherently better than the other. Here are a few considerations:
- Ease of set-up
Wills tend to be easier to set up than trusts. Trusts require that asset ownership be transferred to the trust directly—this process can be long and complicated. - Minor children
In many states, guardians of minor children must be named in a will. Some states allow for guardians to be named in either a will or a revocable living trust. - Probate
Trusts generally avoid probate, but any assets outside the trust may be subject to probate. Wills are subject to probate, though some states allow for small willed estates to either bypass it completely or utilize a simplified probate process. (What qualifies as a “small” estate varies by state.) - Estate size
While trusts are not only reserved for those with large estates, having a large estate does mean that you should likely have a trust in place. What qualifies as a “large” estate depends on your state’s rules around probate. - Cost
Many factors go into whether a will or a trust is ultimately cheaper. Wills are typically cheaper to set up than trusts, but legal fees during probate can add to the overall cost of a will. Meanwhile, trusts may require various property transfer fees. It’s best to look at your individual situation rather than assuming a will or a trust is going to be cheaper at the end of the day.
Does a will override a living trust?
A will and a living trust are two separate legal documents, ideally working together to create a streamlined and clear estate plan. But if an issue arises between the two documents, a living trust will generally override a will.
Don’t leave anything up to chance.
Wills, Trusts, and Probate Court
Probate can be a long and expensive process. Wills are usually subject to probate, while trusts are not. But there are exceptions to the rule. Whether your will goes through probate, and how costly and time-consuming the probate process might be, depends on various circumstances.
What is probate?
Probate is the process through which a will is deemed valid and a deceased person’s assets are distributed. Depending on the circumstances of the estate—such as if a will is disputed or if the estate is substantial—the probate process can be lengthy and expensive.
Probate can be useful in a couple ways:
- Debt. If you die with a lot of debt, probate limits how long creditors have to try and reclaim what they’re owed. Probate court can also determine how much each creditor gets if there isn’t enough to go around.
- Disputes. When family dynamics are tense, probate can absorb some of that tension. While estate disputes can lengthen the probate process and add expenditures to it, probate leaves the burden of validating a will and asset distribution to the court.
Not all states require wills to pass through probate. Washington, for example, requires that wills be filed with the court, but the probate process itself is optional.
Why is probate expensive?
The probate process is not inherently expensive. But costs usually rise because of legal fees. If a large and complex estate goes through probate, the associated fees are likely higher than they would be for smaller and simpler estates.
How can I avoid probate?
There are a few ways to keep your estate (or at least a portion of it) out of probate. Rules vary by state, but here are some tips for avoiding probate.
- Calculate Estate Size
Many states allow estates under a certain size to use a simplified probate process or to avoid probate completely, even if the estate plan contains only a will. When calculating estate size, only include property that passes through the will, then subtract jointly-owned property and accounts that name beneficiaries. - Create a Revocable Living Trust
The most reliable way to skip probate is to put your assets in a revocable living trust. Property that’s placed in this kind of trust avoids the probate process and these assets pass directly to your beneficiaries. - Name Beneficiaries on Accounts
One way to avoid probate (at least for certain property) with only a will in place is to name a beneficiary on bank and retirement accounts. You’ll need to fill out some “payable upon death” forms to do this. Once a beneficiary is named, these accounts won’t have to go through probate upon your death, as they’ll pass directly to the named beneficiary. - Own Property with Another
If only your name is on your real property titles, and your estate plan contains only a will, your property will need to pass through probate. But, if someone else’s name is on the title (such as a spouse), the property will usually pass directly to them upon your death.
What Happens If I Have a Will and A Trust?
If you have both a will and a living trust, the only assets subject to probate are those that aren’t held by the trust. If assets are held in the trust, they will not go to probate.
For example, if your house funds your trust, it will pass directly to your beneficiaries without going through probate. But if your bank account doesn’t fund your trust, and your name is the only one on the account, then it will go through probate before being passed to your beneficiaries.
If there is a discrepancy between what a living trust says and what a will says, the trust usually prevails.