By Andy L. Gitkind | Gitkind Law Firm | Boulder County Estate Planning
“Do I need a will or a trust?” It’s one of the most common questions we hear from families starting the estate planning process—and one of the most important to get right. The honest answer is that both documents serve real purposes, they work differently, and many people benefit from having both.
Let’s break down what each one does, how they differ, and how to think about which approach makes sense for your situation.
What Is a Will?
A will—formally called a last will and testament—is a legal document that expresses your wishes for how your assets should be distributed after you die. It can also name a guardian for minor children, which is one of the most important things any parent can do.
A will only takes effect at death. It has no power while you’re alive, and it doesn’t help if you become incapacitated during your lifetime.
One important thing to understand about wills: in Colorado, a will typically must go through probate before your wishes can be carried out. Probate is the court-supervised process of validating your will and overseeing the distribution of your estate. It typically takes weeks to have your executor (called a “Personal Representative” in Colorado) appointed in order to begin handling the affairs of your estate. And a probated estate can’t be closed in less than nine months.
What Is a Trust?
A trust is a legal arrangement in which you (the grantor or settlor) transfer ownership of assets to the trust, which is then managed by a trustee—often yourself, during your lifetime—for the benefit of your chosen beneficiaries.
The most common type used in estate planning is a revocable living trust. “Revocable” means you can change or cancel it at any time during your life. “Living” means you create it while you’re alive, not through your will.
Because you typically serve as your own trustee while you’re alive and well, a trust doesn’t change how you use or control your assets day-to-day. What it does is create a framework for what happens if you become incapacitated—and what happens when you die.
The Key Differences
Probate
This is the biggest practical difference for most families. Assets held in a properly funded trust generally do not have to go through probate. They pass directly to your beneficiaries according to the trust’s instructions, without court involvement. A will, by contrast, must be probated.
That said, probate is a creature of state law, so is very different from state-to-state. Certain states – notably, New York, Florida, and California – have very complex and expensive probate laws and procedures. And much of the nightmares people hear or read about probate come out of those and other complex probate states.
Also, because it can cost an additional two thousand dollars or more to create a living trust as opposed to a will, there are estate planning attorneys who exaggerate the importance of probate avoidance in order to get as many clients as possible interested in this more expensive planning.
While it’s true that probate in Colorado is quite simple and inexpensive relative to other states in the county, it can still cause some delay in administration, give rise to extra attorney fees and may be more public than many client’s prefer.
Incapacity Planning
A will does nothing for you while you’re alive. If you become seriously ill or incapacitated, a will is irrelevant. A revocable living trust, however, allows a successor trustee to step in immediately and manage your assets seamlessly, without the need for a court-appointed conservator. Another way to avoid a court-appointed conservator is with a well-done financial power of attorney – another element of a proper estate plan.
This is one reason we often say a trust isn’t just about death planning—it’s also about protecting yourself and your family during your lifetime.
Privacy
Wills become public documents once they’re filed with the probate court. Trusts are private. If protecting the details of your estate from public view matters to you—or if you simply don’t want family members to learn the specifics of your estate plan—a trust offers something a will cannot.
Cost
A trust typically costs more to create than a simple will, and it requires the additional step of funding—meaning you need to actually transfer assets into the trust’s name for it to work properly. An unfunded trust is like a beautiful filing cabinet with nothing in it.
However, the upfront cost of a trust is often far less than the time and expense your family would spend going through probate.
Do You Still Need a Will If You Have a Trust?
Yes—almost always. Even with a trust, you need what’s called a pour-over will. This is a safety net document that captures any assets you forgot to transfer into the trust and directs them to flow into the trust at your death. It also lets you name a guardian for minor children, which a trust cannot do.
So for most families, the answer isn’t will or trust—it’s will and trust, along with powers of attorney and healthcare directives to round out a complete plan.
Which Is Right for You?
There’s no one-size-fits-all answer. Some things that tend to point toward trust-based planning:
- You own real estate in Colorado (or multiple states)
- You have minor children and want ongoing management of assets for their benefit
- Privacy is important to you
- You want to avoid the cost, delay, and public nature of probate
A straightforward will may be sufficient for very simple situations, but for many Boulder County families, a revocable living trust is the more flexible and protective choice.
Let’s Talk Through Your Situation
The best way to figure out what makes sense for your family is to sit down and talk through your specific circumstances, goals, and concerns. At Gitkind Law Firm, that’s exactly what Andy Gitkind does in every initial consultation—and the first meeting is always complimentary.
Gitkind Law Firm, P.C. | 801 Main St., Suite 230, Louisville, CO 80027 | 303-960-6628 | gitkindlaw.com