What is the Difference Between a Will and a Revocable Living Trust in Georgia?


Posted on December 22, 2023

When planning your estate in Atlanta, GA, there are a lot of good options of estate planning tools that can each provide a benefit to your plan. The two primary estate planning documents in Georgia are wills and trusts and each one brings something different to the table.

However, you shouldn’t just include these estate planning tools in your plan without consulting an experienced Atlanta estate planning attorney. You should consider many factors when deciding whether to build your estate plan around a revocable living trust or a will. An experienced attorney can assist by making a comprehensive evaluation of your specific circumstances and clear up any misconceptions regarding living trusts and wills. At Trace Brooks Law, we can help you explore your options and determine which can help you fulfill your estate planning goals.

Contact an Atlanta Estate Planning Attorney at Trace Brooks Law today to discuss whether a will or revocable living trust is right for you.

A will is a document in which you declare what you want to happen to the assets in your probate estate after your death. A will takes effect at your death, and must be formally acknowledged as valid by a court of law. Probate is the process of having the will acknowledged by the court. During the probate process, your will becomes part of the public record. The disposition of your estate’s assets is called estate administration.

Your will should appoint an executor to administer your estate and include guidance for the disposition of your probate assets. Your will can also name guardians for any minor children. Finally, your will can serve one of two roles: as your primary estate planning document or as a supporting document for a revocable living trust. The second type of will, known as a pour-over will, simply directs the executor to move all your probate assets into your revocable living trust.

A revocable living trust is a trust often used as a primary estate planning document. Revocable living trusts are more complicated to establish than wills but provide many additional benefits. Like a will, a revocable living trust can be amended or revoked at any time, as long as the grantor (the person creating the trust) is living and has capacity. Because revocable living trusts become effective immediately (i.e., during life instead of at death), the grantor names a trustee (often, the grantor and trustee are the same person) to manage the assets in the trust during the grantor’s lifetime. The grantor should also name a successor trustee (and sometimes more than one) to take over trustee duties when the grantor trustee becomes incapacitated or dies. 

For a revocable living trust to control assets during the grantor’s life, assets must be formally transferred to the revocable living trust – called “funding the trust.” During the grantor’s life, the revocable living trust may be funded with real property, personal property, or other assets. Further, the revocable living trust should also be named as the designated beneficiary on various accounts. At the grantor’s death, the revocable living trust will receive all the assets on which it is the designated beneficiary and all the probate assets as directed by the pour-over will (a necessary supporting document for a revocable living trust). 

If the grantor trustee does not transfer all assets to the revocable living trust during their lifetime, subject to a beneficiary designation, or through joint ownership with rights of survivorship, assets will likely end up in the probate estate. If this happens, your pour-over will must be admitted to probate to ensure the assets in your probate estate are transferred to your revocable living trust.

Once all assets are in the revocable living trust, the trust acts just like a will – directing the disposition of your assets and payment of debts – with one important distinction: privacy. Unlike a will, which requires a formal acknowledgment process and entry into the public record, a revocable living trust has no such requirements.

Court Challenges: Will vs. Trust

The distinction between wills and trusts is pivotal, especially when the assets might face court challenges. Understanding these differences is essential to safeguarding one’s estate and ensuring that the intended beneficiaries receive their due without unnecessary legal entanglement.

A will is a traditional tool for specifying beneficiaries and outlining the distribution of assets after one’s death. However, wills do not shield against conservatorship or guardianship proceedings if you become incapacitated; they only take effect posthumously. This limitation exposes wills to potential court challenges during probate—a public, often lengthy, and costly process where the will is scrutinized, debts are paid, and assets are distributed according to the deceased’s wishes.

On the other hand, a revocable living trust offers a layer of protection from such court challenges. By taking effect during your lifetime and allowing you to appoint a successor trustee, a trust can manage your affairs without court intervention if you’re unable to do so. Since trusts bypass probate, they avoid the public spectacle and associated challenges that can arise during the process. Trusts also maintain privacy after death, concealing the details of the estate from those who might contest the terms.

Trusts are generally harder to contest due to their private nature and because they often contain detailed instructions that have been actively managed. However, they are not ironclad; challenges can still occur, particularly if the trust documentation is not properly drafted or if assets have not been correctly transferred into the trust (funded).

Both wills and trusts can be revised to reflect changes in circumstances or intentions, provided the individual has the mental capacity to do so. However, this flexibility also brings the potential for disputes, particularly from those who may feel unjustly excluded or inadequately considered in the revisions.

Choosing between a will or a revocable living trust as your primary estate planning document is a personal decision. Many clients balance the initial lower cost and ease of implementation of a will-based estate plan with the additional benefits of a revocable living trust that may apply to their unique situation. 

Contact an Atlanta Estate Planning Attorney at Trace Brooks Law today to discuss whether a will or revocable living trust is right for you.

Aspect Will Revocable Living Trust
Legal Document Declaration of post-death asset wishes Effective immediately, controls assets during life
Probate Process Requires court acknowledgment (probate) Bypasses probate, assets managed by trustee
Privacy Becomes part of public record Private, not typically filed with the court
Executor/Guardianship Appoints executor and guardians (if needed) Appoints trustee, can manage assets during life
Amendment/Revocation Can be amended or revoked during life Can be amended or revoked during life
Funding and Asset Control Assets remain outside trust during life Requires formal transfer of assets (funding)

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