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What Is The Difference Between A Testamentary Trust And A Living Trust?

Posted by Joel Beck | Jan 01, 2024 | 0 Comments

Going through the complexities of estate planning is crucial to ensuring your assets are managed and distributed according to your wishes. A critical decision in this process involves choosing between a Testamentary Trust and a Living Trust. Each type of trust offers distinct advantages and serves different needs, but understanding their differences is essential for effective estate planning. In Georgia, choosing between these trusts can significantly impact how your assets are handled both during your lifetime and after your passing. At Peach State Wills & Trusts, we are dedicated to helping you make informed decisions that align with your estate planning objectives, ensuring your legacy is preserved and your intentions are executed.


Difference Between A Testamentary Trust And A Living Trust

  1. Testamentary Trust: A testamentary trust is a legal arrangement created as part of a will. This trust does not come into effect until after the death of the person who made the will, known as the testator. It is activated through the probate process, the legal procedure to validate the will. It is called a testamentary trust because it is created in someone's will, also called a Last Will and Testament.

  2. Key Characteristics:

    1. Control After Death: Testamentary trusts allow the testator to control the distribution of their assets posthumously, assuming that the will is admitted to probate. This can be particularly useful for beneficiaries who are minors or young adults, or others who might need someone else who is more capable of managing a large sum of money responsibly.

    2. Probate Process: Since testamentary trusts are part of the will, they go through probate. This process involves court oversight, which can add a layer of protection but also results in more time as well as costs for probate. In addition, since wills lend themselves to challenges, a will contest might potentially derail the plan for the testamentary trust if the will is thrown out and not admitted to probate. 

    3. Flexibility in Design: Testamentary trusts can be tailored to specific needs, such as setting age thresholds for beneficiaries to receive assets or stipulating conditions under which the assets are to be used.

  3. Living Trust: A living trust, also known as an inter vivos trust or a revocable living trust, is created and becomes operational during the trust creator's lifetime. Unlike a testamentary trust, it doesn't require probate to take effect. 

  4. Key Characteristics:

    1. Control During Lifetime: The settlor (person who created the trust) can control the assets in the living trust while they are alive, either as the trustee or by appointing another person to manage the trust. The settlor can also make changes to the trust during his or her lifetime as well.  

    2. Avoiding Probate: One of the main advantages of a living trust is that it bypasses the probate process. This means the distribution of assets can happen much faster, more privately, and often with less expense. Importantly, assets in the trust are more immediately available to meet your loved ones needs after your death since the assets are not tied up in a probate court process.  

    3. Privacy and Flexibility: Living trusts are not public records, offering more privacy. They also provide flexibility in managing and distributing assets before and after the settlor's death.

Comparative Analysis

A comparative analysis of Testamentary Trusts and Living Trusts reveals distinct differences in their activation, probate process, control over assets, flexibility, cost, and privacy. A Testamentary trust is activated after the death of the creator, during the probate process. This requires probate, making it a public and potentially more costly process, and certainly a more time-consuming process. Control over the assets in a Testamentary trust is exercised posthumously, and it is useful for setting conditions on asset distribution after death.


On the other hand, a Living Trust is active during the creator's lifetime, offering immediate control over assets. It avoids the probate process with respect to assets that are in the trust, thereby providing a much quicker and more private transfer of assets. This also generally makes it more cost-effective and certainly makes it more time efficient. A Living Trust offers flexibility in asset management and distribution both before and after the creator's death. Moreover, it ensures more privacy since it is not part of the public record, unlike a Testamentary trust.


Choosing the Right Trust for You

Your choice between a testamentary and a living trust depends on your circumstances and estate planning goals. If you desire more control over your assets during your lifetime and wish to avoid probate, a living trust might be suitable. On the other hand, if your focus is on directives after your death and the time delays of probate or the possible unavailability of assets for a period while probate is happening is not a concern for you, a testamentary trust in your will could be the way to go.


Contact Us To Help you Make the Right Choice for Your Estate

Estate planning is crucial in securing your legacy and ensuring your wishes are respected. Understanding the difference between testamentary and living trusts is critical to making the best choice. Remember, every estate is unique, and what works for one person may not be the best option for another. Contact Peach State Wills & Trusts at 678-344-5342 or online to learn how to plan for your estate in Georgia today. If you have any questions about estate planning in Georgia, you can download our free guide here, no strings attached.

About the Author

Joel Beck

Joel Beck founded The Beck Law Firm, LLC in 2007. His firm focused on business law and estate planning needs of clients, two areas that he was drawn to based upon personal and business experiences in his life, including a ten-year career at NASD (now known as FINRA).


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