We hear this question often. The short and simple answer is yes: you do need a will, even if you have a trust. To explain why, let’s do a quick review of trusts and how they operate.

A Review of Trusts

As you may already know, a trust is a legally binding document that dictates how your assets should be distributed at your death. We often describe it as a legal but fake person. It can own things, have its own identification number, and buy, sell, or earn income as any real person.

When you create a living trust, you transfer your assets to it so that the trust owns them. Then, at your death, it follows your instructions for how to use or dispose of your assets.

Two Reasons You Still Need a Will If You Have a Trust

Since a trust distributes your assets, it might seem like you shouldn’t need a will as well. But you do. This kind of will is called a pour-over will. Here are the two main ways a will contributes to your estate plan when you have a trust:

1. A will allows you to name a guardian for your minor children.

If you have minor children, you need a will so that you can name a guardian to care for them should you pass away. You cannot do this in a trust.  If you die, your will will clearly name the guardian without revealing the details of your trust, which is a private document.

2. A will helps your trust function properly.

One of the downsides of a trust is that it only controls what it owns. This is why it is important that you transfer all of your assets to it and carefully maintain it.  However, everyone makes mistakes and the pour-over will is designed as a backup in case you forget to put something in your trust.  When you die, the pour-over will transfers to the trust any assets that you missed.

Putting It All Together

If you have a trust, that’s great! It is likely providing you with a lot of control, privacy, and flexibility for how you distribute your assets and care for your loved ones. But it does not negate the need for a simple will.

Try not to think of estate planning as one document to throw together. It’s better understood as a collection of distinct but complementary tools working together to accomplish your specific goals. Look at it as a plan that takes several tools, each functioning in its own role, to realize your goals for the end of your life.

[Related: Wills, Trusts, and Other Estate Planning Tools]

 

If you’re still wondering, “Do I need a will if I have a trust?”, schedule an appointment with us. We would love to talk with you about your specific situation and advise you on which tools are best for your estate plan.

 

Joshua E. Hummer, Esq. is a licensed attorney who has been admitted in both Virginia and West Virginia. He is a graduate of the University of Virginia and has been practicing for over 15 years. While experienced in many parts of the law, Josh specializes in estate planning, estate administration, and elder law.