What are the key differences between Wills and Trusts?

Estate Planning: Wills vs. Trusts

Estate Planning is a difficult topic for many to discuss. By having your wishes honored in an Estate Plan, your assets will be protected in a timelier manner. Most are familiar with a Will, and many have heard of a Trust, but they may not know what these legal instruments look like or how they can work to your advantage.

Quite often, Wills and Trusts will work together. Understanding the purpose of these instruments and their differences is vital to planning, so let’s help break it down for you.

What Is a Will?

The Last Will and Testament is a legal document that outlines your wishes for the distribution of your assets after you are gone.

A Will is the most basic instrument in an Estate Plan, and most Estate Plans should include one. To be valid in Wisconsin, a Will must:

Be in writing.
Be signed and dated by you in the presence of two disinterested witnesses.
Be proven after death—either through a self-proving affidavit or by witness testimony in court.

The contents of a Will depend on your individual needs and desires. However, it should name a personal representative, outline asset distribution, and nominate guardians of any minor children.

What Is a Trust?

Traditionally, Trusts are used to hold assets for one or more beneficiaries and may offer significant estate tax and other protective benefits. When you create a Trust, you designate a trustee to manage the assets for the benefit of the beneficiary. Trusts can give you greater control over how your assets are managed and distributed.

The kind of Trust you establish will depend on your goals and needs. Two common types are Testamentary and Living Trusts.

Testamentary Trusts

Testamentary Trusts are created by a Will and go into effect after the death of the settlor. They are often used to provide for minor children, relatives, or charitable distributions.

Living Trusts

A Living Trust is created during the settlor’s lifetime. Often, the settlor is both the trustee and the beneficiary. Upon the settlor’s death, the assets in the Trust are distributed according to its terms.

Living Trusts can be either revocable or irrevocable:

Revocable Living Trust: Allows you to modify or revoke the Trust during your lifetime.
Irrevocable Living Trust: More difficult to change or revoke, but offers greater asset protection and potential tax benefits.

Do I Still Need a Will if I Have a Trust?

Yes—your Estate Plan should still include a Will. A “Pour Over Will” captures any assets not included in your Trust and directs them into the Trust for distribution. This ensures that all your assets reflect your wishes rather than default legal guidelines.

Whether you choose a Living or Testamentary Trust will depend on your specific circumstances. A Nowlan Estate Planning attorney can help you determine the best path forward.

Contact the Nowlan Estate Planning Team for Assistance

Having a Will or Trust in place is crucial. Without one, your assets may be distributed according to Wisconsin’s rules of Intestacy—which may not align with your wishes or the needs of your loved ones.

Drafting a thorough Estate Plan helps protect your assets during your life and preserve your legacy afterward. A careful review of your situation, options, and goals is essential for confident planning.