Trust in Your Will vs. a Living Trust: What’s the Real Difference? (Part 2)

Last week, we talked about what happens when you create a trust through your will. This week, let’s look at how a trust created during your lifetime, a revocable living trust, actually works, what your family experiences when you have one in place, and how to decide which option truly fits your life.

Quick refresher: a testamentary trust lives inside your will and doesn’t exist until after your estate goes through probate. That means your family could be waiting months or even years while the court does its thing before that trust is even up and running. If your goal is to keep your family out of court and maintain privacy, a testamentary trust just doesn’t get you there.

A living trust, on the other hand, is created during your lifetime and, when properly funded, keeps your family out of court, preserves privacy, and makes things significantly easier for the people you love when something happens to you.

In this article, I’ll break down how living trusts deliver those benefits, walk you through the tradeoffs between these two approaches, and help you make smart, informed decisions so you’re not just picking a tool, you’re choosing the right strategy.

What a Living Trust Really Does

A living trust, often called a revocable living trust, is created and funded while you're living and have legal capacity to make decisions. You transfer ownership of your assets into the trust now, naming yourself as the initial trustee. This means you maintain complete control during your lifetime. You can buy property, sell property, change investments, and manage everything exactly as you did before. The trust doesn't restrict you in any way.

The trust agreement includes detailed instructions about what happens to trust assets when you die or if you become incapacitated. Within the trust agreement, you will name a successor trustee, the person who will take over management of the trust assets when you can no longer serve as trustee. You specify who receives trust assets, when they receive them, and under what conditions. All the protective provisions you might include in a testamentary trust can be included in a living trust.

Here's the crucial distinction between a living trust and a testamentary trust: when you die or if you become incapacitated and cannot make decisions for yourself, the living trust already exists and already owns your assets. Your successor trustee doesn't need court permission to begin managing trust property. There's no probate filing. No waiting for court approval. No public disclosure of your assets or beneficiaries. The successor trustee simply follows the instructions you've provided in the trust agreement.

This means your family avoids the delay, expense, and public exposure of probate court. Your trustee can immediately pay bills, manage property, and begin distributing assets to your beneficiaries according to your timeline. If you've included provisions protecting your children's inheritance until they reach a certain age, those protections start working immediately. Your family gets the benefit of your planning right when they need it most.

The living trust also provides protection if you become incapacitated before you die. If illness, injury, or cognitive decline leaves you unable to manage your own affairs, your successor trustee can step in and handle things for you without requiring your family to go to court for guardianship proceedings. Your chosen successor simply steps into the role you've defined for them.

However - and this is critically important - living trusts only control assets that are actually transferred into the trust. In the world of estate planning lawyers, we call this  "funding" the trust, and it's a crucial step many people overlook, even when working with a lawyer. If you create a living trust but never change the title on your house or retitle your bank accounts, then those assets aren't protected by the trust. When you die, those assets will need to go through probate. The trust can only control what it owns.

This is why working with a lawyer who has systems and processes set up specifically for estate planning, and ideally Initial Planning Session, is so important. Creating a trust agreement is just the first step, and needs to be part of a full plan that covers all of your assets, ensures all of your assets are titled properly, all beneficiary designations are clarified and updated, and you are clear on how to keep everything up to date throughout the rest of your life. We have processes in our office for supporting just that. 

Now that you understand how both types of trusts function, the question becomes: which one makes sense for your specific situation?

Let’s Talk About the Tradeoffs

If living trusts offer so many advantages, why would anyone choose a testamentary trust? It usually comes down to upfront effort and cost. A testamentary trust is often less expensive at the beginning because it’s simply built into your will, no need to retitle assets or do the work of funding a trust during your lifetime. Everything happens later, through probate.

For some people, that tradeoff feels fine. Maybe probate costs don’t seem significant enough to justify doing more now. Or maybe they’re just not concerned about the court process.

But here’s what often gets overlooked: the cost and experience your family will face later. Even a “simple” probate can cost thousands in legal fees and court expenses, and it typically takes months, sometimes years. All while your family is grieving, gathering paperwork, coordinating with attorneys, and dealing with the stress of a court-driven process.

Now compare that to a properly funded living trust. Your family works with your successor, trustee someone you chose who already knows your wishes. Bills get paid, assets are managed, and distributions happen according to your plan. No court involvement, no public process, and typically far less stress and delay.

Family dynamics matter here too. Probate is public, which means anyone can see what you owned and who gets what. That transparency can invite conflict, especially in more complicated family situations. A living trust keeps things private, which can help keep the peace.

And don’t forget your assets. If you own property in multiple states, your family could be dealing with multiple probate proceedings. Own a business? Probate delays can disrupt operations. A living trust avoids both by allowing seamless management and transfer.

When you really look at it, the decision isn’t just about cost, it’s about experience, control, and what you’re putting your family through later. And you don’t have to figure that out on your own. The right advisor can walk you through your specific situation so you can feel confident you’re making the best decision for the people you love.

How 20West Legal Makes It Work

As a Personal Family Lawyer® Firm, we’re not here to push you into one type of trust over another. We start by helping you understand what would actually happen to you and your family if you became incapacitated or passed away, based on your real life, your assets, and your family dynamics. We walk you through the real costs, the real timeline, and the real experience your loved ones would face, so you can make a decision that truly fits your goals and your budget.

If a living trust is the right fit, we don’t just hand you a binder and wish you luck. We make sure your trust is properly funded, assets retitled, beneficiary designations aligned, nothing missed. And then we stick with you. We keep your plan updated as your life changes and make sure you always have support when you need it.

Most importantly, we’re there for your family when you can’t be. Whether you become incapacitated or pass away, your loved ones won’t be left guessing. They’ll have a trusted advisor who knows you, understands your wishes, and can guide them every step of the way.

If that’s the kind of support you want for yourself and the people you love, click here to schedule a complimentary 15-minute discovery call and get started: https://pages.20westlegal.com/schedule/meeting

This article is a service of 20WestLegal LLC. We don't just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love. That's why we offer a Planning Session, during which you will get more financially organized than you've ever been before and make all the best choices for the people you love. You can begin by calling our office in Sudbury, Massachusetts today to schedule an Estate Planning Session and mention this article to find out how to get this $750 session at no charge.

The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer® firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own separate from this educational material.