Trusts and Wills have this in common– each states how assets will be distributed at death. But they differ in many ways.
WILL: Two witnesses sign.
TRUST: No witnesses sign.
WILL: Should not be notarized.
TRUST: Virtually all trusts are notarized. But notarization is not legally required.
WILL: The will is deposited with Clerk after death.
TRUST: The trust is not filed or deposited with Court after death.
WILL: Oral will is not valid.
TRUST: Oral trust of personal property is valid.
WILL: Not effective until death.
TRUST: Effective when signed.
WILL: Probated after death. Court is in control.
TRUST: Administered after death. Court is not in control.
WILL: Important to have original copy after death.
TRUST: Original copy not always needed. Copy often used after death.
WILL: Cheaper to create.
TRUST: More costly to create.
WILL: No work involved at time of creation.
TRUST: Work involved in funding the trust at time of creation.
WILL: After death could be considerable work involved for the Executor.
TRUST: After death could be considerable work involved for the Trustee.
WILL: After death, probate generally is more costly and slower to process.
TRUST: After death, trust administration is cheaper and faster to process.
WILL: After death fees are set by California law.
TRUST: After death fees are set by agreement with the trustee.
Many more differences exist. Two important ones are that it takes a different mental capacity to make a revocable living trust than a will; and the relationship created during lifetime is different. San Diego follows California law in Wills and Trusts. Some people have the mistaken belief that all they need is a power of attorney to handle assets for a person who has died. A power of attorney expires when the person who gave the power of attorney expires. What is needed is either: (1) a trust; or (2) a probate administration.