Should I get a Will, Marital Property Agreement, or Revocable Living Trust?

Posted on Feb 10, 2022 by

A comparative analysis about wills, marital property agreements, and revocable living trusts to help you determine which option is right for you and your loved ones:

Consideration
Will
Marital Property Agreement
Revocable Living Trust
Cost Typically less “upfront” cost, but greater administration cost (i.e. probate process) Low “up front” and administration costs Greater “upfront” costs but typically much less cost of administration (i.e. no or very little probate, low-cost settle affairs)
Probate Avoidance? No, all wills must be probated Yes Yes (if the trust is funded properly)
Timing of Distributions Probate process creates delays With proper procedure, the transfer can be virtually immediate No limitation on trustee processing distributions virtually immediately
Coordination of Planning Only one component, possibility of uncoordinated or conflicted planning Depends on specific circumstances, limited flexibility, and possible lack of understanding by beneficiaries Comprehensive approach, RLT acts as “funnel” directing all assets into a common overall dispositive scheme
Incapacity Planning None – must be done separately (e.g., with DFPOA)

For example, potential problems:

   agent vs. owner
   immediate vs. springing
   statutory short form vs.         general abuse
   statutory limitations
   “staleness”
 None – must be done separately (e.g., with DFPOA)

For example, potential problems:

   agent vs. owner
   immediate vs. springing
   statutory short form vs.         general abuse
   statutory limitations
   “staleness”
 Can be incorporated seamlessly into terms of trust instrument (at least as to trust assets)

Potential problems associated with DFPOA generally will not apply
Real Property in Different States Separate probate proceedings must be commenced in each state MPA “will substitute” transfers are only recognized in Wisconsin Trust can own real estate in any state or jurisdiction
Ability to Make Changes Can be changed easily with a new will or codicil Can be changed during lifetime and by surviving spouse after passing of the first spouse Easily changed by amendment or restatement
Flexibility Limited flexibility in provisions for beneficiaries without creating trust under will Transfer to beneficiaries is fast and efficient, but very limited flexibility Provisions for beneficiaries can flexibly adapt to a very wide variety of future circumstances
Retention of Control Maker entirely controls contents, but implementation is subject to decisions and oversight of probate court Makers in control during lifetime; surviving spouse can change provisions after the first spouse passes Trust maker has nearly complete control throughout the duration of the trust’s existence
Privacy No privacy, as the probate process is public No privacy, MPA must ultimately be recorded to implement planning Privacy assured, no public disclosure of terms of trust or details of administration
Continuation After Death Only with continuing probate court supervision and associated cost MPA will substitute provisions that are effective after death, but cannot continue in effect like a trust Trust can easily continue virtually as long as needed, with trust assets actively and flexibly administered by the successor trustee
Control Over How Inherited Assets Are Used? Little to none Little to none Terms of trust can easily specify conditions or limitations on the use of assets
Beneficiary Protections Against “Creditors & Predators” Little to none Little to none Very flexible and powerful beneficiary protection

At McCarty Law LLP, we’re here to help! Please contact our estate planning attorneys for more information. We’re happy to assist as you make these decisions for you and your loved ones.

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Mark D. Schubert

Mark assists clients with estate planning, elder law matters, and real estate. He provides comprehensive help with estate planning including wills and trusts, and strives to make the process as understandable and comfortable as possible. His elder law practice includes probate, trust settlement, and both proactive and crisis planning involving Medicaid eligibility for nursing homes and other forms of long-term care.
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