Choosing between a will and a revocable living trust is an important part of Maryland estate planning, but the right choice depends on your property, family circumstances, priorities, and plans for the future. A will can provide clear instructions for distributing individually owned probate assets after death, while a properly funded revocable living trust can offer additional options for managing assets during incapacity and transferring trust property outside probate. Neither approach is automatically better for every family.
Robert Burke Law Firm can help individuals and families in La Plata, Charles County, and throughout Southern Maryland evaluate their options and build an estate plan around their individual needs. If you are considering a will or trust, request a consultation with our caring and knowledgeable firm today.
Understanding Wills in Maryland
A last will and testament states how property governed by the will should be distributed after a person’s death. It can also nominate a personal representative to administer the estate and, for parents of minor children, designate a guardian if the other parent does not survive. A will does not necessarily control every asset a person owns. Assets with beneficiary designations, such as many retirement accounts and life insurance policies, generally pass according to those designations. Jointly owned property may also pass outside the will depending on how title is held.
After death, a will generally becomes part of the probate process for assets subject to probate. In Maryland, estate paperwork is filed with the local Register of Wills, and the state has a Register of Wills office in every county and Baltimore City, according to Maryland Courts. For many families considering Maryland wills and trusts, a will may provide an appropriate foundation, particularly when probate avoidance and lifetime trust management are not major planning objectives.
What Is a Revocable Living Trust in Maryland?
A revocable living trust in Maryland is established during the person creating the trust’s lifetime. That person, commonly called the settlor or grantor, transfers property to the trust. The trust is managed by a trustee according to its terms. In many estate plans, the person creating the trust can also serve as the initial trustee and beneficiary. This arrangement allows the individual to continue controlling trust property while capable. The trust document can then identify a successor trustee who can assume management responsibilities under the circumstances described in the trust.
As its name indicates, a revocable trust can generally be amended or revoked while the settlor has the required capacity and retains the applicable power under the trust. Maryland law provides that the capacity required to create, amend, revoke, or add property to a revocable trust is the same capacity required to make a will. Maryland law also specifies that incapacity itself does not convert a revocable trust into an irrevocable trust. These provisions can be reviewed in the Maryland Trust Act.
Families interested in how trusts fit into a broader plan can also review our firm’s estate planning and probate services.
Will vs. Trust in Maryland: How Does Probate Differ?
Probate is one of the most significant differences when comparing these tools. A will does not avoid probate in Maryland. Instead, it provides instructions concerning probate property, including who should receive that property and who is nominated to serve as personal representative. The probate process provides a formal framework for estate administration under Maryland law.
Assets properly transferred to and held by a revocable living trust generally do not need to pass through probate simply to be distributed under the trust’s terms. The successor trustee can administer trust property according to the trust agreement.
The word properly matters. Creating and signing a trust does not automatically place every asset into it. Depending on the asset, titles or ownership records may need to be changed. Assets left outside the trust may remain subject to probate unless they pass through another non-probate mechanism.
How Do Wills & Trusts Compare on Privacy?
Privacy may also influence the decision. Because probate is a court-supervised legal process, certain documents and information associated with an estate may become accessible through public records. Maryland’s Register of Wills, for example, maintains searchable estate and will records.
A revocable living trust is generally administered outside the probate process and does not ordinarily become a probate record merely because the settlor dies. For families that place a high value on keeping details about trust assets and distributions outside the probate file, this can make trust planning in Maryland worth considering. That does not mean a trust guarantees complete secrecy. Litigation, tax requirements, beneficiary rights, or other circumstances can result in disclosure of information.
Which Option Provides More Control Over an Inheritance?
Both wills and trusts can be used as part of plans that provide structure for beneficiaries, but a living trust can be especially useful when a person wants trust property to remain under management after death. For example, trust terms may provide for property to be held for children until particular ages or distributed according to defined conditions. This may be relevant when beneficiaries are minors, when families want to stagger distributions, or when immediate outright inheritance does not fit the family’s goals. A will can also create testamentary trusts that take effect after death. However, those arrangements are established through the probate estate rather than through an already existing living trust.
Another consideration is asset protection for beneficiaries. A properly structured trust can provide for a child’s or other beneficiary’s inheritance to remain in trust after the settlor’s death rather than being distributed outright. Under Maryland law, depending on the trust’s terms and circumstances, assets that remain in trust for a beneficiary may receive protection from the beneficiary’s creditors, including in situations involving lawsuits, bankruptcy, or divorce. This protection may be available even when an adult child serves as trustee of the trust established for that child’s benefit, provided the trust is structured appropriately.
That distinction can be important when comparing a continuing trust with an outright inheritance. If a beneficiary receives property outright through a will, or if a trust terminates and distributes its assets directly to the beneficiary, those assets generally become the beneficiary’s own property and no longer have the protections associated with keeping the inheritance in a continuing trust. Families considering how an inheritance should pass may therefore want to look not only at when beneficiaries receive assets, but also at whether those assets should remain in trust for their benefit.
Incapacity Planning Is an Important Difference
Estate planning is not solely about what happens after death. Families should also consider who will manage property if an individual becomes unable to handle financial affairs. A will generally does not govern asset management during the will-maker’s lifetime. Other documents, particularly a durable financial power of attorney, can play an important role in incapacity planning.
A revocable living trust offers another mechanism. It can serve as a tool for preparing for disability. When assets have been transferred to the trust, its terms can provide for a successor or co-trustee to manage those assets if the settlor becomes incapacitated.
This does not necessarily eliminate the need for powers of attorney or other estate-planning documents. A comprehensive plan may use several tools because no single document governs every financial, legal, and health care decision.
What About Administration & Costs?
Cost comparisons between wills and revocable trusts require looking beyond the initial drafting expense. A will-based plan may be simpler and less costly to establish initially, depending on the family’s circumstances. After death, however, probate administration can involve court filings, notices, inventories, accountings, professional services, and other responsibilities.
A revocable living trust generally involves more work during the planning stage. The trust must be drafted for the client’s circumstances, and appropriate property needs to be transferred into it. Trust administration may also continue after death, particularly when assets are to remain in trust for beneficiaries. Although avoiding probate can reduce some probate-related administration, a trust still needs to be administered. Trustees have legal and practical responsibilities, and expenses can arise after the settlor’s death. For that reason, comparing only the upfront price of Maryland wills and trusts may not provide a complete picture.
When Might a Will Make Sense?
A will-centered estate plan may be worth considering when:
- A person’s estate and intended distributions are relatively straightforward.
- The individual is comfortable with probate administration.
- There is limited need for ongoing management of assets through a living trust.
- The person needs to nominate a guardian for minor children.
- Other tools, such as beneficiary designations and powers of attorney, address important non-probate and incapacity concerns.
The suitability of these factors depends on the complete estate plan rather than any single document.
When Might a Revocable Living Trust Make Sense?
A revocable living trust may merit consideration when:
- A family places a high priority on keeping properly funded trust assets outside probate.
- Privacy is an important planning objective.
- The individual wants a structure for managing trust property during incapacity.
- Property will remain under trust management for beneficiaries after death.
- The person owns real property or other assets for which coordinated trust planning may simplify future administration.
A knowledgeable lawyer can examine how these considerations apply to specific assets and family circumstances rather than relying on general rules.
Wills & Trusts Are Not Necessarily an Either-Or Choice
The phrase, “will vs. trust in Maryland,” can make estate planning sound like a choice between two competing documents. In practice, many trust-based estate plans also include a will.
For example, a “pour-over” will can address certain property that was not transferred to the trust during the settlor’s lifetime and direct it toward the trust after death, subject to applicable probate requirements. A will may also address matters a living trust does not, such as nominating a guardian for minor children.
Similarly, an estate plan may include powers of attorney, advance medical directives, beneficiary designations, and careful asset titling. The effectiveness of the plan depends on how these pieces work together.
Building a Maryland Estate Plan Around Your Family
The best estate-planning structure depends on what you own, how it is titled, whom you want to benefit, how much ongoing control you want, and what should happen if you become incapacitated. A will can offer a straightforward framework for directing probate assets, while a revocable living trust can provide additional options involving probate avoidance, privacy, incapacity, and continuing asset management. Neither should be selected simply because it is commonly recommended to someone else.
Robert Burke Law Firm in La Plata can help people in Southern Maryland develop plans suited to their individual circumstances. To speak with an estate planning attorney about wills, revocable living trusts, or a broader estate plan, request a consultation with our experienced firm today.