Estate Planning, Probate & Estate Administration

Wills vs. Trusts

Wills

A will is an instrument that determines the disposition of a decedent’s property after death. A person who executes a will is a testator. Valid wills override the intestacy statutes. A will is ambulatory, or revocable, up to the death of the testator, at which point it becomes irrevocable.

A will can be revoked, in whole or in part, by an express provision, by the inconsistency of a later will, by destruction, or by operation of law. More than one instrument, executed at different times, may constitute one will under the doctrine of integration. Wills must either conform to testamentary formalities or be in the requisite holographic form to be validly executed in Arkansas. A will must be filed for probate in circuit court in order for its terms to be effective to nominate an executor or prove the transfer of property and to be enforceable, although it may be used as evidence once the time for probate has passed.

 

 Trusts

A trust is a form of ownership created by a grantor that splits title to property into “legal title” owned by a trustee and “equitable title” owned by a beneficiary. Trusts may be divided into two types, inter vivos and testamentary. A testamentary trust cannot come into existence until the death of the settlor or grantor, whereas an inter vivos trust is created during the life of the grantor. A testamentary trust is created by will, after it has been properly filed and orders have been issued. An inter vivos trust may be created either by: 1) a declaration by the grantor-trustee that the grantor now holds the property as a trustee; 2) a transfer from the grantor to another person as trustee; or 3) the exercise of a power of appointment in favor of a trustee. Inter vivos trusts may further be divided into revocable and irrevocable trusts. Revocable inter vivos trusts, or “living trusts,” have become very popular as will substitutes. Irrevocable inter vivos trusts are popular vehicles for gifts and may confer tax advantages. Property in an inter vivos trust at the death of the grantor will not pass through judicial probate proceedings, since the probate estate consists of all property owned by the decedent at the time of his death “except such interests as terminated by reason of his or her death.”

 

  Wills Trusts
Formalities Necessary to Execute Yes No
Affects Property during Life No Yes
Affects Property after Death Yes Yes
Revocable during Life Yes Yes
Deals with Incapacity No Yes
May be Modified after Death No Yes
Terms are Public after Death Yes No

 

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