When you have a living trust do you need a will?

2 answers | Last updated: Dec 05, 2016
A fellow caregiver asked...

When you have a living trust do you need a will? What is the difference between a will and a revocable living trust? If I have a revocable living trust, do I also need a will?


Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Living trusts and wills function almost the same during life. The difference is that when you die, the title to the property in your trust will pass automatically to those you named to take it; wills must generally go through a court's probate process.

Still, it's a good idea to have a will, even a simple one, as a catch-all for property that, for one reason or another, doesn't make it into your living trust.

A will is an essential back-up device for property that you don't transfer to yourself as trustee of your living trust. For example, if you acquire property shortly before you die, you may not think to transfer ownership of it to the trust -- which means that it won't pass according to the trust terms. But in a back-up will, you could include a clause that names someone to get any property that you haven't left to a particular person or entity.

If you don't have a will, any property that isn't transferred by your living trust or other probate-avoidance device, such as joint tenancy, will go to your relatives in a hierarchy set out in your state law. These laws may not distribute property in the way you would have chosen.


Community Answers

A fellow caregiver answered...

A Living Trust should automatically contain a Pour Over Will ~ at least that is how I draft mine for my clients to avoid any potential liabilty for a significant asset passing via intestacy and not under the terms of the Trust.