Probate Vs. Will Vs. Trust

If both you and your spouse pass away, designating a guardian for your children is a crucial decision. A will and a trust can both be valuable tools for addressing this concern, but they have different processes and implications.

Will

1. Guardianship Designation:

   • In your will, you can explicitly designate a guardian for your minor children. This is a legal document that outlines your wishes regarding who will take care of your children in the event that both parents are unable to do so.

2. Probate Process:

   • Wills typically go through the probate process, during which a court validates the document and ensures that your wishes are carried out. The court will consider your guardian designation but will ultimately make the final decision based on the best interests of the child.

3. Public Record:

   • Wills become public records during probate, so the details of your guardianship preferences may become part of the public record.

Trust

1. Living Document:

   • A trust is a living document that can be effective during your lifetime and after your death. It allows you to set up specific instructions for the management and distribution of your assets, including provisions for the care of your children.

2. Faster Distribution:

   • Unlike a will, a trust typically avoids the probate process for assets held within the trust. This can lead to a faster distribution of assets and can provide more immediate financial support for the guardian.

3. Privacy:

   • Trusts provide more privacy compared to wills. The details of your trust, including guardianship provisions, are typically private and not part of the public record.

Combining Both

• Many families use both a will and a trust as part of their estate plan. The will can address guardianship, while the trust can provide more detailed instructions for asset distribution and ongoing financial support for the children.