Wills V. Trusts

Most of our clients choose a Living Trust over a Will. To understand why, we need to get some terms out of the way. First, Probate. Probate is a court, just like criminal court, family court, or civil court. The probate judge has one job, to assign new owners to anything that does not have a legal owner when someone dies. So, think about the things you own, a house, bank accounts, a car, your pets and even your kids. If you pass away, Probate is the default method for finding your stuff a new home.

A Will is a letter to the probate judge. It tells the judge three things. It tells the court who you want the judge to name as your executor or Personal Representative, where you want the judge to send your stuff, and who you want the judge to appoint as the guardian for your minor children. A will does not skip probate, in fact a will is designed for probate. If you don’t have a will, the judge will apply the default provisions found in Utah’s Probate Code. 

It’s important to note here that some things automatically have owners when someone dies. For example, you might have a beneficiary on your bank account or your life insurance. Your will and the probate court have no effect on these because they have a designated owner when you pass away. This can create conflict if your Will says one thing and the beneficiary designation says something else.

A Living Trust on the other hand is a management contract. It says in effect “I own stuff and I am putting a manager in charge of my stuff in the event I become incapacitated or pass away.” The Trust is basically a rule book on how you want things handled in the event of a major emergency. When set up correctly, the trust is either named as the owner or the beneficiary on your property and accounts so that if something happens to you, all of your stuff has an owner, the same owner, and probate has nothing to do with it.