By Michael A. Dolan

Which is better, a will or a living trust? This complex question is often debated, and it can bring out strong opinions and a great deal of misinformation.

Overview
Wills and living trusts are simply written instructions telling others what you want done with the things you own when you die. There are distinct differences between these documents, and they are administered upon death in very different ways.

A will is a written document stating your desires for the division and distribution of your assets following your death. It is only used when you die. A will does not avoid the need for probate administration. In fact, a will is instructions for the probate process.

A living trust is a contractual agreement you enter while you are living, and it takes effect immediately. In a trust, you name someone else to step in as trustee when you become disabled or die. The trust contains instructions for how you use the property while you are alive and well, and how to use and distribute the assets upon your disability or death.

Which is best?
If wills and living trusts are simply instructions, are the instructions what get the job done?

Let’s draw a comparison. It’s Christmas Eve, you have managed to get the children to bed, and now it’s time to assemble those final Christmas gifts for careful placement under the tree. You pour yourself a cup of coffee, pull out the assembly instructions, sit down on the couch, and you’re done! Is that how it works? Clearly not. While the instructions are helpful, they don’t miraculously produce the result.

Estate planning is no different. Having a set of instructions in place does not miraculously produce the result. Preparing for and implementing those instructions is what will determine the success or failure of your estate plan.

Wills and living trusts are tools that are used to accomplish your objectives. If you want to remodel your kitchen, do you call the contractor and ask him which tools he is going to use to complete the project? Or, do you tell her your vision for what you would like your kitchen to look like, and allow her to choose the appropriate tools to make your vision a reality?

When dealing with your estate planning, the focus should not be on the tools used, but on the vision of what you would like the result to be in the future. Leave the determination of which tools are most appropriate to accomplish your objectives to the professionals.

Conclusion
There is no standard answer to the question, “Should I have a will or a living trust?” The answer to the question can only be determined after counseling with an attorney to help you determine what you hope to accomplish using the documentation. Only then can an appropriate tool be chosen for your specific situation.

Unfortunately, if you meet with an attorney who is just selling wills or living trusts, you’re going to get whatever they are selling. Make sure you choose a legal professional focused on helping you determine your specific goals and objectives for your family before making recommendations on tools to accomplish those objectives. Always remember to focus in on the eventual outcome, not the documents.

Dolan, an attorney, helps farm and ranch families achieve comprehensive estate, succession and legacy planning objectives. He is the principal of Dolan & Associates P.C. in Brighton and Westminster, Colo. Learn more on his website, estateplansthatwork.com.