Quick Answer
A will directs who receives your property after death and names a guardian for minor children, but it must pass through probate court to take effect. A living trust holds your assets during your lifetime and transfers them privately after death without probate, but only for the assets you actually move into it.
Most families with meaningful assets need both. The trust handles the transfer of property. A pour-over will catches anything left outside the trust and handles the one thing a trust cannot do at all, which is naming a guardian for your children.
Most Americans Have Neither
Only 24 percent of Americans reported having a will in 2025, with 13 percent reporting a living trust and 4 percent holding other estate planning documents. That is down from 33 percent with a will in 2022.
The most common reason people give for not having one is simple procrastination, with more than 40 percent saying they had not gotten around to it. Others assume they do not own enough to justify planning at all.<sup>1</sup> That assumption is where the trouble usually starts. Estate planning is less about the size of the estate than about who decides what happens to your children, your home, your bank accounts, and your medical care when you cannot decide for yourself.
What a Will Does
A will is a written instruction that takes effect only at death. It names beneficiaries for property that does not already pass by some other mechanism, names an executor to administer the estate, names a guardian for minor children, and can create a trust at death, called a testamentary trust. Once filed with the probate court it becomes a public record that anyone can read.
There are important things a will does not do. It does not avoid probate. It does not control assets that already have named beneficiaries, including life insurance, retirement accounts, and payable-on-death bank accounts. And it does nothing at all while you are alive, so it offers no protection if you become incapacitated.
What a Living Trust Does
A revocable living trust is a legal entity you create and control during your lifetime. You transfer assets into it, serve as your own trustee, and name a successor trustee to take over at death or incapacity. You can change or revoke it at any time while you have capacity.
Assets properly titled in the trust bypass probate entirely. The terms remain private rather than becoming a public court record. The trust functions during incapacity without requiring a court-appointed conservator. It can stagger distributions over time rather than handing a lump sum to a young or financially inexperienced beneficiary. And it handles real property located in multiple states without requiring a separate probate proceeding in each one.
There is a catch that defeats a large share of trusts in practice. A trust only controls what has actually been transferred into it. Deeds must be re-recorded in the name of the trust, financial accounts retitled, and beneficiary designations coordinated so they do not contradict the plan. An unfunded trust is an expensive stack of paper that accomplishes nothing, and incomplete funding is the single most common failure in do-it-yourself estate planning.
What Probate Actually Costs
Probate is the court-supervised process of validating a will, notifying and paying creditors, and distributing what remains. Cost and duration vary enormously by state and by the complexity of the estate.
Timelines commonly run from six months to two years, and considerably longer if the will is contested or if creditors dispute claims. Costs typically include court filing fees, executor compensation, publication costs, bond premiums in some cases, and attorney fees.
A handful of states set statutory attorney fees as a percentage of the gross value of the estate. That calculation frequently ignores debt, which means a house worth $500,000 with a $400,000 mortgage can be treated as a $500,000 asset for fee purposes. Many other states offer simplified or small-estate procedures below a dollar threshold, which can make a trust unnecessary for a modest estate.
If you own real property, probate is generally required in each state where that property sits. Owning a house in one state and a vacation condo in another means two separate proceedings unless a trust holds them both.
Not sure whether a will or a trust actually fits your family's situation? An estate planning attorney near you can review your assets, your family structure, and your state's probate rules to tell you exactly which documents you need — often during a free initial consultation.
The Federal Estate Tax Is Not the Issue for Most Families
People frequently assume trusts are primarily tax avoidance devices. For the overwhelming majority of households they are not.
The federal estate tax exemption is $15,000,000 per person for 2026, up from $13,990,000 in 2025.<sup>2</sup> The One Big Beautiful Bill Act made that base permanent, with inflation indexing resuming in 2027, eliminating the sunset that had been scheduled for the end of 2025.<sup>3</sup> Married couples can effectively shield $30,000,000 using portability, provided the estate of the first spouse to die files a return electing it. The top federal rate remains 40 percent on amounts above the exemption.
State estate and inheritance taxes are a different matter entirely. A number of states impose their own, several with thresholds far below the federal one, and a few impose inheritance taxes payable by the recipient rather than the estate. If you live in one of those states, the planning conversation changes substantially and the relevant threshold may be well within reach of an ordinary home and retirement account.
The Documents Almost Everyone Needs
Regardless of whether you choose a will or a trust, an estate plan is incomplete without several supporting documents.
- Durable power of attorney, authorizing someone to handle financial matters if you become incapacitated. Without it, your family may need a court-supervised conservatorship, which is expensive and public.
- Health care proxy or medical power of attorney, designating who makes medical decisions on your behalf.
- Advance directive or living will, stating your wishes about life-sustaining treatment.
- HIPAA authorization, allowing named individuals to receive your medical information.
- Updated beneficiary designations on retirement accounts, life insurance, and payable-on-death accounts. These pass by designation and override your will entirely. An ex-spouse listed on a retirement account from 2009 will receive that account regardless of what your will says.
Which One Fits Your Situation
A will is usually sufficient if your estate is modest, you own real property in only one state, your state offers a simplified probate procedure, your beneficiaries are adults you trust to manage money, and privacy is not a particular concern.
A trust earns its additional cost if you own real estate in more than one state, you want to spare your family probate delay and expense, you have a blended family with children from a prior relationship, a beneficiary has special needs or creditor problems, you want distributions staggered over time, you own a business, you expect a contest among heirs, or you place real value on privacy.
Most trust-based plans include both documents. A pour-over will backstops any asset that never made it into the trust and remains the only instrument capable of naming a guardian for minor children.
Frequently Asked Questions
Can I write my own will?
Most states permit it, but execution requirements are strict and vary. Improper witnessing invalidates wills routinely. Handwritten wills, called holographic wills, are recognized in some states and rejected in others.
Does a trust protect assets from creditors or nursing home costs?
A revocable living trust does not, because you retain control and the assets remain reachable. Irrevocable trusts can offer protection but require giving up control and carry significant tradeoffs and lookback periods.
What happens if I die with no will at all?
State intestacy law decides. Statutory formulas distribute property to relatives in a fixed order, and a judge selects a guardian for minor children without any input from you.
How often should I update my plan?
Review after any marriage, divorce, birth, death, significant asset purchase, business change, or move to another state. Every three to five years otherwise.
Are online estate planning tools adequate?
For simple situations they can produce valid documents. They do not analyze your state's probate rules, coordinate beneficiary designations, or fund a trust, which is where most plans fail.
How much does an estate plan cost?
A simple will package often runs several hundred dollars. A funded trust-based plan commonly costs a few thousand. Weigh that against probate expense and the risk of an unfunded plan.
Who should I name as executor or trustee?
Someone organized, trustworthy, and willing. They need not be a beneficiary or a family member, and a professional fiduciary is an option when family dynamics are difficult.
Does a trust avoid taxes?
A revocable living trust has no effect on income or estate taxes during your lifetime. Its advantages are probate avoidance, privacy, and incapacity planning.
What is a pour-over will?
A short will used alongside a trust that directs any asset not already in the trust to pour into it at death. It functions as a safety net for incomplete funding.
Can a will be contested?
Yes, typically on grounds of lack of capacity, undue influence, fraud, or improper execution. Trusts can also be challenged but the process is generally harder and less public.
Ready to put a plan in place? Compare verified estate planning attorneys in your city at BestLocalLaw.com. Most offer a free initial consultation to tell you which documents your situation requires.