Living Trusts vs. Wills: Which One Is Right for You?

By
The Tabuchi Law Team
October 25, 2023
5
min read
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If you're an Ontario resident thinking about the future, how you plan your estate could be one of the most important decisions you'll make. Living trusts and wills are the two primary tools at your disposal, and choosing the right one can be a complex decision. This post delves into living trusts and wills, offering Ontario-specific insights to inform your decision. We'll discuss the benefits, creation process, and tailored considerations for couples, families, seniors, and blended families. Also, we'll shed light on why seeking expert legal advice from firms like Tabuchi Law is invaluable in navigating the nuances of estate planning. With this guidance, you can make an informed decision that secures your legacy and provides peace of mind.

Demystifying Living Trusts in Ontario

What Is a Living Trust?

In estate planning, a living trust is a legal entity that owns your assets during your lifetime. When you create a living trust in Ontario, you transfer your assets into the trust and manage them as the trustee to benefit your designated beneficiaries. After your passing, the assets are passed on according to the trust's instructions—outside the public eye and court system.

The Advantages of a Living Trust

Living trusts offer several benefits

  • Privacy: Unlike a will, a living trust is not public record.
  • Probate Avoidance: Living trusts skip the potentially lengthy and costly probate process.
  • Control: They offer granular control over asset distribution.
  • Protection: Trusts can shield your estate from certain taxes and legal complexities.

Creating a Living Trust in Ontario: A Step-by-Step Guide

To create a living trust in Ontario, follow these steps:

  1. Identify Your Trust Type: Determine the trust that aligns with your goals (revocable or irrevocable).
  2. Draft the Trust Document: This outlines all the particulars of the trust.
  3. Title Your Assets: Transfer your assets into the trust's name.
  4. Appoint a Trustee: Designate someone to manage the trust after your passing.
  5. Notarize and Store the Document: Legalize and keep the trust securely stored.

Living Trusts for Different Family Dynamics

Trusts for Couples

Couples might choose a joint trust to manage their assets together and streamline the succession process upon either's passing. This is particularly beneficial for avoiding multiple probate proceedings and maintaining continuity in asset management.

Trusts for Families

Families often consider trusts to manage inheritances for minors or to structure assets to support family members over time. Trusts can also be structured to fund education costs special needs, or to protect assets from beneficiaries' potential future divorce or creditors.

Trusts for Seniors

Seniors might prioritize a trust for its ability to manage assets in the event of incapacity. They can also use it to outline specific healthcare wishes or create a structured inheritance plan involving living benefits.

Trusts for Blended Families

Blended families face unique challenges, often needing to balance fairness among biological and step-children. A trust can specify exact distributions and timelines, ensuring all family members are considered as intended.

The Cost of Creating a Living Trust in Ontario

The cost of creating a living trust varies, depending on the complexity and the professional fees of the lawyer you engage. While it's more expensive upfront than a will, it can save money in the long run by avoiding probate fees and speeding up asset distribution.

The Essential Role of Wills in Estate Planning

Understanding Wills in Ontario

A will is a legal declaration by which a person names one or more individuals to manage their estate and provides for the transfer of their property at death.

Pros and Cons of Wills

Pros of a will include its simplicity and lower initial cost. However, the probate process associated with wills can be lengthy, public, and incur additional fees.

Drafting a Will in Ontario

Creating a will involves:

  1. Determining Asset Distribution: Decide who inherits what.
  2. Choosing an Executor: Someone to execute the will's instructions.
  3. Making the Will: This can be done solo, with online help, or with a lawyer.
  4. Signing with Witnesses: Ontario law requires witnessing for a valid will.

Understanding When to Consider a Living Trust in Ontario

The choice between a living trust and a will is contingent upon several personal factors, financial circumstances, and your goals for your estate after you pass away. Here are situations when a living trust might be the more suitable option:

Privacy Concerns

A living trust is often better if privacy is a significant concern. Unlike a will, which becomes a public record once it enters the probate process, a living trust remains private. This means the details of your estate and whom you've left it to will not become publicly accessible information.

Estate Size and Complexity

For those with a larger or more complex estate, mainly if it includes business interests, intellectual property, or assets in multiple jurisdictions, a living trust offers control and flexibility that a will cannot. You can set specific terms for how and when your assets are distributed, which can be especially important if you have particular wishes about the future of a business or property.

Probate Avoidance

One of the most significant advantages of a living trust is the ability to avoid probate—the legal process through which a will is validated. Probate can be time-consuming and expensive, often taking months or even years and incurring fees that can reduce the estate's value. In contrast, assets in a living trust can be transferred to beneficiaries without probate, typically much faster and with fewer associated costs.

Anticipating Incapacity

Suppose there's concern over potential incapacity due to illness or age. In that case, a living trust allows for a smoother transition of control over your assets. If you cannot, you can designate a successor trustee who will manage the trust's assets, ensuring that your affairs are handled according to your wishes without needing a court-appointed guardian or power of attorney.

Planning for Special Circumstances

A living trust can be particularly advantageous if you must provide for a special-needs beneficiary. It allows for the management of assets to benefit the individual without disqualifying them from receiving government assistance. Additionally, you can establish conditions under which beneficiaries receive their inheritance, such as reaching a certain age or achieving a milestone like college graduation.

Recognizing When a Will Is the Appropriate Choice in Ontario

While living trusts offer many advantages, wills are still the right choice for many individuals in Ontario. Here's when you might opt for a will over a living trust:

Simplicity and Cost

A will is often better if your estate is straightforward and your primary concern is simplicity and cost. Creating a will is generally less expensive upfront than establishing a living trust. For those with modest estates and direct, uncomplicated distribution wishes, a will can adequately meet your needs.

Smaller Estates

The benefits of avoiding probate may not be as pronounced for smaller estates. In Ontario, smaller estates may qualify for a simplified probate process, making a will less burdensome.

Willingness to Undergo Probate

Some individuals are less concerned with the public nature of probate or the associated costs and delays. They might prefer a will if they see no significant disadvantage to their estate through the probate process.

Less Concern About Incapacity

For those less concerned about potential incapacity or with other mechanisms in place (such as powers of attorney), the incapacity planning benefits of a living trust may not be as compelling.

Update Frequency

Anticipate making frequent changes to your estate plan. A will might be preferable since it can be easier and less costly to update than a trust. Amending a trust can require additional steps and documentation, which might not be ideal for everyone.


Tailoring Estate Planning to Your Life Stage and Family Structure

For Couples and Families

Couples and families benefit from living trusts by addressing joint asset management and safeguarding children's futures.

For Seniors

Seniors can use living trusts to manage their affairs in later stages and articulate specific wishes for asset distribution and healthcare.

For Blended Families

Blended families can ensure fairness and clarity through a carefully structured trust in inheritance matters.


Emphasizing the Importance of Expert Advice

Why Expert Guidance Matters

Tabuchi Law offers expertise to ensure your living trust and will aligns with your personal and financial goals. Our team will clarify legal complexities, assist in tax planning, and tailor an estate plan to your needs.

Conclusion

Your decision between a living trust and a will is pivotal. It should reflect your life stage, family structure, and legacy goals in Ontario. Expert legal services, such as those provided by Tabuchi Law, are essential for navigating the process and ensuring your estate plan fits your unique situation.

Contact us today for a consultation!

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