Do I Need a Trust If I Already Have a Will?
If you already have a will, you may not need a revocable living trust.
A will and a trust solve overlapping but different problems. Whether adding a trust makes sense depends primarily on:
what you own;
whether avoiding probate matters to you;
whether you own real estate;
whether you want someone to manage assets during incapacity;
whether you own property in more than one state; and
how you want beneficiaries to receive their inheritance.
For some Utah families, a will-based estate plan is entirely sufficient.
For others, particularly homeowners who want to avoid probate or families who want centralized management of assets during incapacity and after death, a revocable living trust can provide meaningful additional benefits.
The goal is not to have the most documents. It is to use the simplest estate plan that accomplishes what you actually want.
What Does a Will Do in Utah?
A Last Will and Testament primarily controls property that becomes part of your probate estate.
A will can:
identify who should receive probate property;
nominate a personal representative;
nominate a guardian for minor children;
create trusts for children or other beneficiaries; and
provide other instructions concerning administration of your estate.
A conventional Utah will generally must be in writing, signed by the person making it, and witnessed by at least two people who satisfy Utah's execution requirements. Utah also recognizes qualifying holographic wills and certain other writings under its Probate Code. Utah Code 75-2-502
A will is therefore an important estate-planning document.
But it does not itself avoid probate.
If I Have a Will, Does My Family Still Need Probate?
Potentially, yes.
A will tells the probate court and personal representative what should happen to property that is subject to probate.
The will does not remove that property from probate merely because the document exists.
For example, if you die owning a Utah home solely in your individual name and there is no trust, transfer-on-death deed, survivorship arrangement, or other effective nonprobate transfer, probate may still be necessary to transfer the property.
Utah does have an informal probate process for cooperative estates. Informal probate generally proceeds without a hearing when the interested parties agree about who should serve and how the estate should be administered. Utah State Courts
So the question is not whether probate is always terrible.
The question is whether avoiding it provides enough benefit in your situation to justify the additional planning and implementation of a trust.
What Does a Revocable Living Trust Add?
A revocable living trust can provide three major benefits that a will alone does not provide in the same way:
Probate avoidance for properly funded assets
Management of trust property during incapacity
Centralized administration of property during life and after death
The key phrase is properly funded assets.
Creating the trust document alone does not move your home, investment account, or other property into the trust.
The ownership and beneficiary structure of those assets must actually be coordinated with the trust.
A Trust Can Avoid Probate—but Only for Assets Properly Coordinated With It
Suppose you create a revocable living trust.
You sign it.
But your house remains titled solely in your individual name.
If you later die without transferring the home into the trust or using another effective nonprobate transfer arrangement, the house may still require probate.
The problem is not that the trust was invalid.
The problem is that the trust never owned the house.
For real estate, funding typically requires preparation and recording of a deed transferring the property to the trustee of the trust.
Learn How to Transfer Property Into a Trust
This is one of the most important differences between buying a trust document and completing a trust-based estate plan.
Does a Trust Help If I Become Incapacitated?
Yes, for property controlled by the trust.
While you are able to manage your affairs, you usually serve as trustee of your own revocable trust.
If you later become incapacitated, a properly drafted trust can authorize a successor trustee to begin managing trust property.
That may allow the successor trustee to manage:
trust bank accounts;
investment accounts;
trust-owned real estate;
business interests owned by the trust; and
other trust property.
A will does not provide this function because a will generally operates at death.
A trust does not eliminate the need for a financial power of attorney, however.
The power of attorney can cover financial and legal matters that are not held in the trust.
A complete incapacity plan often uses both documents.
Does a Trust Guarantee That My Family Will Avoid a Conservatorship?
No.
A properly funded trust and financial power of attorney can substantially reduce the circumstances in which a court-appointed conservator might be necessary.
But no estate plan should guarantee that court involvement will never be required.
The effectiveness of the plan depends on the particular assets, documents, institutions involved, and circumstances at the time.
Is a Trust More Private Than a Will?
Generally, yes.
A will submitted to probate becomes part of the probate proceeding.
A revocable living trust ordinarily does not need to be filed with the probate court merely because the settlor dies.
That can provide substantially more privacy concerning beneficiaries and distribution terms.
But I would not describe a trust as completely private under every circumstance.
Trust provisions may need to be disclosed to beneficiaries, financial institutions, title companies, courts in litigation, taxing authorities, or others when legally or practically necessary.
A Certificate of Trust can often establish trustee authority without disclosing the trust's full dispositive provisions.
Learn About Certificates of Trust in Utah
Do I Need a Trust Just Because I Own a House?
No.
Owning a home is a significant reason to consider a trust, but it does not automatically mean a trust is the best choice.
Utah homeowners have several potential ways to transfer property at death.
Option 1: Revocable Living Trust
You transfer the home into your trust during life.
After death, the successor trustee can generally administer trust-owned property without probate merely to establish authority over the home.
A trust also provides incapacity management and can coordinate the home with other assets.
Option 2: Transfer-on-Death Deed
Utah expressly permits a transfer-on-death deed.
A properly executed and recorded TOD deed allows a designated beneficiary to receive Utah real property at the owner's death. The deed is revocable during the owner's lifetime and must be recorded before death to be effective. Utah Probate Code
For a homeowner with straightforward beneficiaries and relatively simple planning goals, a TOD deed can sometimes accomplish the desired probate avoidance at less cost and with less administration than a living trust.
Option 3: Survivorship Ownership
An appropriate form of joint ownership may also allow property to pass to the surviving owner outside probate.
Whether that approach makes sense depends on who the joint owners are and the consequences of giving another person a current ownership interest.
So the answer is not:
“Homeowner = trust.”
The better question is:
“What is the simplest and safest way to transfer this particular home under the owner's overall estate plan?”
When Is a Will-Based Plan Usually Enough?
A will-based plan may make sense when:
your wishes are straightforward;
you are comfortable with the possibility of probate;
most significant assets already pass by beneficiary designation;
you do not own real estate or have a simple nonprobate plan for it;
you do not own real estate in multiple states;
you do not need centralized trust management during incapacity; and
the additional cost and funding work of a living trust provides little practical benefit.
A will can also create continuing trusts for children.
So you do not need a revocable living trust merely because you want your child's inheritance held until age 30 or managed in trust.
A properly drafted will can create a testamentary trust after death.
When Does Adding a Trust Make More Sense?
I would more strongly consider a revocable living trust when:
you own a home and want to avoid probate for it;
you own several significant assets that you want centrally administered;
you own real estate in more than one state;
privacy is particularly important;
you want a successor trustee managing trust assets during incapacity;
you want continuing trusts for beneficiaries combined with nonprobate administration;
your family situation is complicated; or
you simply prefer trust administration over probate administration.
No single factor automatically requires a trust.
The case becomes stronger as several of these factors apply.
What If Most of My Assets Already Have Beneficiaries?
Then a trust may provide less additional value.
Suppose your estate consists primarily of:
401(k): spouse is beneficiary
IRA: spouse is beneficiary
Life insurance: spouse is beneficiary
Bank account: payable on death
Investment account: transfer on death
If those arrangements are valid and the beneficiaries survive you, relatively little property may remain in the probate estate.
Adding a trust solely for probate avoidance might therefore accomplish less than you expect.
But the analysis changes if you also own a home individually, want inheritance trusts for beneficiaries, or want centralized management during incapacity.
Can Beneficiary Designations Replace a Trust?
Sometimes, for particular assets.
Beneficiary designations can be excellent probate-avoidance tools.
They are commonly used for:
life insurance;
retirement accounts;
payable-on-death bank accounts; and
transfer-on-death investment accounts.
Utah also permits a TOD deed for real property, although technically that is a deed rather than a beneficiary designation on a financial account. Utah Probate Code
The limitation is that separate beneficiary arrangements do not provide the same centralized management as a trust.
They can also become cumbersome when you want:
trusts for minor children;
staged distributions;
lifetime inheritance trusts;
special-needs planning;
different contingencies for multiple beneficiaries; or
coordinated administration of many assets.
For simple wishes, individual beneficiary arrangements may be enough.
For more complicated wishes, a trust often makes administration cleaner.
What If I Have Minor Children?
Minor children do not automatically mean you need a revocable living trust.
You should, however, address two separate issues:
Who should care for the children?
and
Who should manage their inheritance?
Utah permits a parent to nominate a guardian by will or another qualifying written instrument. A will is therefore a common place for the nomination, but it is not the only method Utah law recognizes. Utah Code 75-5-202
The inheritance can then be held in trust.
That trust can be created:
under your will as a testamentary trust; or
under your revocable living trust.
The choice between a will-based and trust-based plan is therefore broader than the question of whether you have children.
Learn How to Structure a Trust for Children
If I Have a Trust, Do I Still Need a Will?
Usually, yes.
A trust-based estate plan commonly includes a pour-over will.
The pour-over will can direct probate property left outside the trust into the trust after death.
But there is an important limitation:
The pour-over will does not magically avoid probate for those assets.
If an asset is individually owned and must pass under the will, probate may still be necessary before the asset ultimately reaches the trust.
That makes the pour-over will a useful backup—not a substitute for funding the trust.
A will may also contain the guardian nomination for minor children, although Utah law permits a parental guardian appointment through another qualifying written instrument as well. Utah Code 75-5-202
Why Not Just Put Everything Into the Trust?
Because not every asset should necessarily be retitled to the trust.
For example, retirement accounts such as IRAs and 401(k)s are generally handled through beneficiary designations rather than retitling the account into a revocable trust.
Life insurance likewise normally remains owned according to the selected ownership structure while the death benefit passes under a beneficiary designation.
Bank and investment accounts may be retitled to the trust, made payable to the trust, or structured another way depending on the plan.
Trust funding should be done asset by asset, not by mechanically trying to put everything into the trust.
What If I Own Real Estate in Another State?
This is one of the stronger reasons to consider a revocable trust.
If you die owning individually titled real estate in Utah and another state, your family may potentially face probate proceedings involving more than one jurisdiction.
Properly transferring each property into the trust during life can often avoid probate merely to transfer those trust-owned properties after death.
The deed requirements of each state must still be followed when the property is transferred into the trust.
What If I Already Have a Good Will?
You do not necessarily throw it away simply because you are considering a trust.
The first step should be to review the existing plan.
If you decide to move from a will-based plan to a trust-based plan, the documents usually need to be coordinated.
That can involve:
preparing the revocable trust;
replacing the existing will with an appropriate pour-over will;
reviewing financial powers of attorney;
reviewing health care directives;
preparing a property deed;
reviewing beneficiary designations; and
explaining how other assets should be funded or coordinated.
The goal is to create one integrated estate plan, not simply place a new trust next to old documents that may say something different.
What If My Existing Will Was Prepared in Another State?
Moving to Utah does not automatically invalidate a properly executed will.
Utah Code § 75-2-506 recognizes a written will if its execution complied with Utah law or with certain other applicable laws, including the law of the place where it was executed or where the testator was domiciled at specified times. Utah Code 75-2-506
That does not mean the old plan should never be reviewed.
Moving states can affect:
property ownership;
fiduciary appointments;
health care documents;
powers of attorney;
probate administration; and
whether the estate plan still reflects your current family and assets.
Review first. Replace only what actually needs replacing.
Trust vs. Will: A Practical Comparison
Probate
Will: Property controlled by the will generally passes through probate.
Trust: Properly funded trust property can generally be administered without probate merely to transfer that property.
Incapacity
Will: Does not manage property during lifetime incapacity.
Trust: A successor trustee can manage trust property under the trust terms.
Children's Inheritances
Will: Can create testamentary trusts for children.
Trust: Can create continuing trusts without requiring trust-owned property to pass first through probate.
Real Estate
Will: Does not itself avoid probate for individually owned real estate.
Trust: Can avoid probate for real estate properly transferred to the trust.
Utah TOD Deed: Can also avoid probate for qualifying real estate in an appropriate situation.
Privacy
Will: Becomes part of the probate proceeding when probated.
Trust: Usually remains outside the public probate file, subject to circumstances requiring disclosure.
Cost and Work During Life
Will: Generally simpler and less expensive initially.
Trust: Costs more and requires appropriate funding and ongoing attention to ownership.
Neither is automatically better.
How Much Does a Will-Based Plan Cost?
At Legacy Peak Estate Planning Law, our standard will-based plan is:
One person: $1,000
Two people: $1,500
A will-based plan includes the core estate-planning documents for death and incapacity but does not include a revocable living trust or trust-funding deed.
How Much Does a Trust-Based Plan Cost?
Our trust-based estate planning package starts at:
One person: $1,500
Two people: $2,000
The package includes:
the revocable living trust;
Last Will and Testament;
financial power of attorney;
advance health care directive;
Certificate of Trust;
supporting estate-planning documents; and
preparation and recording of one Utah property deed when applicable.
We also explain how other significant assets should be coordinated with the trust.
View Estate Planning Services and Pricing
Is the Extra Cost of a Trust Worth It?
That depends on what the trust solves.
If the only benefit would be avoiding a straightforward probate for a small amount of property, the additional cost and funding work may not be worthwhile.
If the trust avoids probate for a home, avoids potential ancillary probate for out-of-state real estate, provides incapacity management, and centralizes substantial assets, the value proposition can be much stronger.
I would not recommend a trust simply because it is a more expensive estate-planning product.
It should solve enough real problems to justify the additional cost and work.
Frequently Asked Questions
If I have a will, do I also need a trust?
Not necessarily.
A will-based estate plan can be entirely appropriate if your wishes are straightforward and you are comfortable with the possibility of probate.
A trust becomes more attractive when probate avoidance, real estate, incapacity management, privacy, or centralized asset administration are significant priorities.
Does a will avoid probate in Utah?
No.
A will directs the administration of probate property but does not itself keep that property out of probate.
Does owning a house mean I need a trust?
No.
A revocable living trust is one option.
Utah also permits transfer-on-death deeds, and some real estate passes through survivorship ownership. Utah Legislature
The best option depends on the broader estate plan.
Is a TOD deed cheaper than a trust?
Usually, if the only legal work being compared is transferring one straightforward Utah property at death.
But a TOD deed addresses that particular property. It does not provide the broader incapacity management, centralized administration, or beneficiary-trust structure of a revocable living trust.
Can I use beneficiary designations instead of a trust?
For some estates, yes.
If most property already passes through effective beneficiary designations and your wishes are straightforward, a trust may add relatively little probate-avoidance value.
Can a will create a trust for my children?
Yes.
A will can create testamentary trusts for children or other beneficiaries. A revocable living trust is not required merely to postpone or structure a child's inheritance.
Does a trust completely eliminate probate?
Not necessarily.
Probate can still be required for individually owned property left outside the trust without another effective nonprobate transfer method.
Does a trust completely eliminate the need for a will?
Usually not.
Trust-based estate plans commonly include a pour-over will as a backup for assets left outside the trust and for other appropriate provisions.
Can a trust avoid probate in multiple states?
A properly funded trust can often avoid separate probate proceedings merely to transfer trust-owned real estate located in multiple states.
The properties must actually be transferred into the trust according to the applicable state's law.
So, Do You Need a Trust?
A useful way to decide is to ask what problem the trust would solve.
If your answer is:
“I want my Utah home to avoid probate, but everything else is simple,”
a trust may make sense—but a TOD deed may also deserve consideration.
If your answer is:
“I own a home and investment accounts, want one successor managing everything if I become incapacitated, want probate avoidance, and want continuing trusts for my children,”
the case for a revocable living trust becomes substantially stronger.
If your answer is:
“Most of my property already has beneficiaries, I have straightforward wishes, and I do not mind informal probate if it is ever necessary,”
a will-based plan may be entirely adequate.
Estate planning should fit the client—not the other way around.
Legacy Peak Estate Planning Law prepares both will-based and trust-based estate plans. We can review what you already have and tell you whether adding a trust provides enough benefit to justify the additional cost and work.