Will – Living Trust – Both

Stephen Howard — Stone River Law

Real People. Real Solutions.

Will – Living Trust – Both

If I have a living trust in Utah, do I still need a will?

A living trust (sometimes referred to as a “family trust” or “revocable trust”) can be a powerful and versatile estate planning tool. But a living trust is not a substitute for a will. Both a will and a trust can serve important, but different, purposes as part of an effective Utah estate plan.

Without a will, any property or assets owned by you that are not held under a trust will pass under Utah’s intestate succession laws. This may not result in the distribution of your property that you had intended.  While a trust is often used to avoid the probate process in Utah, it often does not make sense to hold all property under the trust.

Personal property such as furniture, household effects, tools, etc. are often not held under a trust.  You may acquire property shortly before your death that may not be held under the trust.

By leaving a will, you can determine how this property will be distributed, or you can use a will to place any remaining property into the trust upon a person’s death. (A will that is written to place any remaining assets into your trust upon your death is sometimes called a “pourover” will.)  

If you have minor children in Utah, it is critical to create a will.  In your will, you can nominate a guardian for your minor children.  While a trust may be used to designate a trustee to manage the assets that are held on behalf of a minor child, a trustee is not authorized to make health care decisions, educational decisions, etc. on behalf of a minor child.

A guardian must be appointed by the court in order to address these important issues. Using your will to name a guardian can help avoid family conflicts that may arise over the issue of who should be the child’s guardian.

Finally, there are occasionally unforeseeable issues involving your estate that must be addressed by your personal representative after your death. By naming your preference for a personal representative in your will, you can help ensure that someone you trust will be appointed to act as your personal representative.

Occasionally, we speak with individuals who have the mistaken understanding that executing a will means that their estate will have to go through probate upon their death. This is not true. Trusts are often used for the purpose of avoiding probate. But even with a properly drafted trust, filing a probate action may become necessary. Without a will, if probate is needed, your estate will go through probate under Utah’s intestate succession laws. By executing a will, the probate process can be much simpler if it does become necessary

One reason to create a living trust is to avoid probate if possible.  But in some circumstances, even with a properly drafted trust, filing a probate action may become necessary. Executing a will does not mean that your estate will have to go through probate, but having a will can make the probate process much simpler if it becomes necessary.