You probably already know what a will is. Wills are often dramatized on television and in movies — someone scribbling one in a foxhole, or the dramatic graveside reading before the surviving family. I always found those scenes awkward, perhaps because, in real life, there is no such thing as a public reading of a will. Typically the only people who read it are the executor, the attorney representing the estate, and a clerk at the Surrogate’s Court. Beneficiaries are usually given a copy to review as well, but there is no public reading.
Simply stated, your last will and testament is your final set of instructions and governs the disposition of your assets. It specifies who gets your belongings and under what circumstances, and it determines who you appoint to important roles such as executor and guardian. (For more on those choices, see our post on choosing your fiduciaries.)
If you have done any research about preparing your will, you have probably encountered two very different schools of thought. Let’s simplify the issue. One school says you should draft a traditional will — one that becomes effective only when you die and otherwise sits idly by. The other recommends creating a revocable trust (also known as a living trust), paired with a will called a pour-over will.
What are the differences?
A revocable trust is a trust that you create for yourself while you are alive. Once the trust is created, you re-title and rename your assets so they are owned in the name of the trust. The pour-over will then says that any assets you own at the time of your death which you have not already moved into the trust get poured into it on death — hence “pour-over.”
Reason 1: Privacy.
Every will must be probated. Probate is the process by which the will is submitted to the Surrogate’s Court in the state and county in which you resided at death. The court reviews and approves the will, gives the executor the authority to follow it to the letter, and closes out the proceeding when everything is done. Whenever a will is filed for probate it becomes a public record, accessible to anyone who wishes to read it. The Surrogate’s Court will not generally publish the will online, but an interested party can go to the courthouse and request a copy.
Most of us would not care whether someone read our will. Most people would not bother. But if you are a celebrity, a public figure, or someone with a complicated family, the public — or that one relative — might be very interested. Trusts, unlike wills, are not probated. They are not submitted or filed with a court, and as such they do not become public records. For people who care about privacy, a revocable trust may be the way to go.
Reason 2: Avoiding probate delay and expense.
The other reason to consider a revocable trust is that in some states the probate process is lengthy, expensive, or both. In theory the revocable trust avoids probate. In practice, if every asset has not been transferred into the trust, your pour-over will has to be probated anyway. In some states the process is neither lengthy nor costly. If you live in one of those states, and you are not particularly concerned about privacy, a traditional will is often the better choice.
This is one of those decisions where the help of an experienced estate planning attorney matters. The right answer depends on the specific state, the specific assets, and the specific family — not on a generic rule.
The downside of a revocable trust.
The downside is that it can take significant time and money to fund — meaning, to actually transfer all your assets into your trust.
For example, the deed to your home must be in the name of your trust. If you already own your home when you draft the trust, the deed is in your name and you will need to transfer it. That means redrafting and recording a new deed naming the revocable trust as the owner.
If, like most homeowners, you have a mortgage, you are generally prohibited from transferring title without the consent of your lender. The lender may or may not permit it. If it does, additional paperwork and additional legal fees will be required. And after going through all that trouble, you may not even own the property at the time of your death — in which case you spent considerable time and money for nothing. (Note: in 2024 New York added a new option that may help in some of these scenarios — see New York’s new Transfer on Death Deed.)
This process must be repeated for every other asset. Bank accounts must be re-titled. Brokerage accounts must be re-titled. Owning everything in the name of your trust will add a layer of complication to your life, and so the question is whether the privacy and probate avoidance are worth it for you.
And remember: anything you own at death which you did not title in the name of the revocable trust will be poured into the trust by the pour-over will. But your pour-over will must be probated. And when it is probated, a copy of the revocable trust will likely be filed alongside it. There goes your privacy.
The point is not that one instrument is better than the other. The point is that the right choice depends on your state, your assets, your family, and your goals. Give that question careful thought — ideally with a lawyer who is going to be there for the next twenty years to make sure your plan still works.
Quick FAQ
Do I need both a will and a revocable trust? Not always. If you have a revocable trust, you should also have a pour-over will to catch any assets that did not get moved into the trust during your lifetime. If you only have a will, that is fine too — many people do not need a trust at all.
Does a revocable trust save estate taxes? No. A revocable trust is “ignored” for federal estate tax purposes during your lifetime; the assets remain part of your taxable estate. If estate-tax minimization is your goal, you are looking for irrevocable trust strategies, which we cover on our estate planning page.
Can I change my revocable trust later? Yes — that is what makes it “revocable.” You can amend, restate, or revoke it during your lifetime. Make sure to keep it current as life changes.
Where should I keep my will once it is signed? Somewhere your executor can find it. Original signed wills must usually be produced to the court — copies are typically not accepted.