living trust vs will

Living Trust vs Will in New Jersey: Understanding the Differences


In the realm of estate planning in New Jersey, two primary instruments often come into focus: living trusts and wills. Each has its distinct advantages and appropriateness depending on individual circumstances. This comprehensive guide aims to elucidate the differences, benefits, and considerations of living trusts and wills, assisting you in making informed decisions for your estate planning.

What is a Living Trust and How Does it Work?

A living trust, particularly a revocable living trust, is a legal framework where you can place your assets during your lifetime. You, as the grantor, retain control over these assets and can amend or dissolve the trust at your discretion.

Key Features of a Living Trust

  • Control and Management: As the grantor and trustee, you have complete management rights over the trust’s assets. This control extends to modifying the trust’s terms or completely revoking it if your circumstances or intentions change.
  • Probate Avoidance: One of the most significant advantages of a living trust is its ability to bypass the probate process upon your death. This not only saves time and legal fees but also maintains the privacy of your estate affairs, as opposed to the public nature of probated wills.
  • Flexibility and Protection: A living trust offers flexibility, allowing you to add or remove assets as needed. It also provides a layer of protection in cases of incapacitation, where a successor trustee can take over management without court intervention.

Understanding Wills in Estate Planning

A will, or a last will and testament, is a traditional tool for estate planning, detailing how your assets should be distributed posthumously.

Characteristics of a Will

  • Executor Appointment: A will allows you to appoint an executor who will oversee the distribution of your assets according to your wishes after your death.
  • Probate Necessity: Unlike living trusts, wills must go through the probate process, which can be time-consuming and involves court supervision. This process also makes your estate matters a matter of public record.
  • Simplicity and Accessibility: Creating a will is generally a simpler process than establishing a trust. It’s a straightforward way to ensure that your assets are distributed according to your wishes.

Living Trust vs Will: What’s Right for You?

The choice between a living trust and a will in New Jersey hinges on several personal factors, including the size and complexity of your estate, your privacy preferences, and the level of control you wish to maintain over your assets during your lifetime.

Considerations for New Jersey Residents

  • Estate Size and Complexity: Larger estates with more complex asset structures may benefit more from the flexibility and control offered by a living trust.
  • Privacy Concerns: If maintaining privacy regarding your estate’s distribution is a priority, a living trust is preferable, as it does not become part of the public record like a probated will.
  • Ease of Management: While living trusts offer more control, they also require active management, which might be a consideration for those preferring a more hands-off approach.

How to Create a Living Trust in New Jersey

The process of creating a living trust involves several steps and requires careful consideration to ensure it meets your estate planning goals.

Steps to Set Up a Living Trust

  • Trust Document Creation: Collaborating with an experienced estate planning attorney is crucial in drafting a legally sound trust document. This document should outline the terms of the trust, including the designation of trustees and beneficiaries.
  • Funding the Trust: For the trust to be effective, you must transfer ownership of your assets into the trust. This might include real estate, bank accounts, investments, and other valuable assets. The process varies depending on the type of asset and requires meticulous attention to detail.

Probate and Living Trusts: Understanding the Difference

The probate process, which is necessary for executing a will, can be lengthy, public, and sometimes costly. In contrast, a living trust offers a more streamlined and private means of asset distribution.

Benefits of Avoiding Probate

  • Efficient Asset Distribution: Assets held in a living trust can be distributed to beneficiaries without the delays and complexities of probate, ensuring they receive their inheritance in a more timely manner.
  • Maintaining Privacy: Since living trusts are not subjected to probate, the details of your estate do not become public record, offering a higher degree of privacy in your affairs.

The Role of Trustees and Executors in Estate Management

The administration of living trusts and wills are handled by trustees and executors, respectively. These roles come with specific responsibilities and legal obligations.

Responsibilities and Duties

  • Trustees in Living Trusts: Trustees are responsible for managing the trust’s assets according to the terms set out in the trust document. This includes investment decisions, asset distribution, and other management duties.
  • Executors in Wills: Executors have the responsibility of administering your estate through the probate process. This includes gathering assets, paying debts and taxes

, and distributing the remaining assets as per the will’s instructions.

Tax Implications: Living Trusts and Wills in New Jersey

Both living trusts and wills can have implications on estate and inheritance taxes. Understanding these tax aspects is crucial in effective estate planning.

Estate and Inheritance Tax Considerations

  • Estate Tax: This tax is levied on the overall value of the deceased’s estate. Both trusts and wills are subject to estate tax considerations, depending on the size of the estate.
  • Inheritance Tax: New Jersey imposes an inheritance tax on certain beneficiaries, which varies based on their relationship to the decedent. The tax implications for each beneficiary can differ depending on whether assets are distributed through a will or a trust.

Revocable vs Irrevocable Living Trusts

When setting up a living trust, you have the option to choose between a revocable and an irrevocable trust. This choice significantly affects your control over the assets and potential tax benefits.

Key Differences

  • Revocable Trusts: Offer the benefit of flexibility, as you can modify or revoke them at any time. However, they do not provide tax advantages or asset protection during your lifetime.
  • Irrevocable Trusts: Once established, these trusts cannot be altered or revoked. They offer potential tax benefits and can protect assets from creditors, but at the cost of relinquishing control over the assets placed in the trust.

Living Trusts for Incapacitation and Elder Law Considerations

A significant aspect of living trusts is their utility in managing your affairs if you become incapacitated, an important consideration in elder law.

Benefits for Incapacitation

  • Seamless Management Transition: In the event of your incapacitation, a successor trustee can immediately take over the management of the trust, ensuring continuity and avoiding the need for court intervention.
  • Comprehensive Control: A living trust can include provisions for your care and the management of your assets, offering a more comprehensive approach to incapacity planning than a will.

Why Work with a New Jersey Estate Planning Attorney

Navigating the complexities of estate planning requires professional legal guidance. An experienced estate planning attorney can provide invaluable assistance in crafting a plan that aligns with your goals and complies with New Jersey laws.

The Role of an Attorney

  • Legal Expertise: An attorney can guide you through the nuances of New Jersey estate laws, ensuring your living trust or will is legally sound and effective.
  • Customized Planning: Every estate is unique, and an attorney can help tailor your estate plan to fit your specific needs, whether it’s setting up a trust, drafting a will, or both.

Deciding between a living trust and a will in New Jersey is a decision that should be made after careful consideration of your estate’s size, your privacy preferences, and how you wish to manage your assets. Both options have their unique advantages, and the guidance of an experienced estate planning attorney is invaluable in navigating these choices. 

Are you ready to secure your future and ensure your estate is managed exactly as you wish? Don’t leave it to chance. Book your Free Consultation. Whether you’re considering a living trust, drafting a will, or simply need guidance on estate planning in New Jersey, we are here to provide expert, personalized advice. Take the first step towards peace of mind and clarity for your estate planning needs. Click now to schedule your free consultation and let us help you navigate the path to a secure and well-planned future.

Key Takeaways

  • Living Trusts vs Wills: Each offers distinct benefits for asset management and distribution.
  • Probate Avoidance and Privacy: Living trusts offer efficient asset distribution without probate and maintain privacy.
  • Legal Guidance: Professional legal advice is crucial in tailoring an estate plan that meets your specific needs and goals.
  • Living Trusts: Offer control, privacy, and avoid probate.
  • Wills: Simpler, but go through probate and become public record.
  • Estate Size and Complexity: Larger, more complex estates may benefit more from living trusts.
  • Professional Guidance: Essential for navigating estate planning complexities.

The Law Firm of Benjamin Eckman provides New Jersey residents with Estate Planning and Elder Law services. Please click here to schedule a complimentary consultation: Book a Call

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