Trust and will resemble each other a lot at a cursory glance. Some people find it hard to distinguish between the two entities sometimes. Though it’s valid that they are confused between the 2, it is not so hard to distinguish it. 

Difference between a trust and a will in estate planning 

Let’s establish what a trust and a will are first in estate planning. 

1. Trust 

A trust is a legal entity that is used to protect the assets and properties in your estates and companies. Trusts are recommended mostly for people who have significant assets in their estates. This is because these significant assets can be expensive to create and administer beyond a certain monetary limit. A trust will often cover the estate’s finances and allow the details of your finances to remain private. Even when your trust has passed beyond outside of probate, your finances will still remain private. 

When you have passed away, the trust will become the legal owner of your assets. As a matter of fact, your assets already belong to the trust as soon as you have created them. 

There are many kinds of trusts available out there. However, an irrevocable trust is the most relevant one in the world of estate planning. An irrevocable trust is one that cannot be revoked. As soon as it is created and you have put your assets in there, you cannot take it out. 

Irrevocable trusts are good for people who are looking to avoid probate and keep the asset details private. In an irrevocable trust, it allows you to make more detailed provisions on how your estate is handled. It also protects creditors and potential litigations against your assets. 

2. Wills 

Wills are usually made to instruct the trustee and the executor on how to distribute the assets, monies, and properties after you have passed away. The same thing applies in estate planning as much as it does in personal assets. 

You can name your trustees, your executors, your beneficiaries, all in your wills – be it in personal wills or even in estate wills. When you have passed away, the named trustee and/or executor can come around and administer the assets, monies, and properties accordingly. You won’t have to worry too much about what’s going to happen to your assets when you have passed away. As long as your will is legal then you have (close to) nothing to worry about. 

However, if you do not have a will, or a legal will at that, then things will get super difficult and painful for you and your next-of-kin. Your assets will go into probate, which often takes a very long time to settle before a beneficiary is named. 

Oftentimes, if you do not have a legal will and have a child out of wedlock with your partner, then you will be faced with a lot of difficulties. For one, when you have passed away, the Distribution Act/law dictates that your assets be divided and given to your immediate family. Your unmarried partner and child will not get anything out of it. They can contest it, but it will be a long and difficult battle for your unmarried partner and child. 

Which one is better for my estate then? 

Now that we have established the basic understanding of both trust and will, your next question will be which one will suit you better. 

Choose a trust if you have significant assets in your estate to distribute. It’s not that a disgruntled heir will challenge your trust when you have passed away. They can challenge the trust if they are not happy with the final outcome. However, a trust is good when you have noteworthy assets to distribute. 

Choose a will if your finances are an issue for you now. Wills are generally a tad bit more affordable than a trust, but it’s still money nonetheless. However, a good thing about wills is that it’s very specific in what to distribute and to who. If any of your assets are not named in your trusts, you can list them down in your will. That way your “unlisted” properties will not go to waste. A disgruntled heir will also challenge a will if they are not happy with the outcome and results too. 

Key Takeaway 

Regardless of which one you choose to go for, both have its own benefits. Just remember to have one done and legalized before you passed away. Because when you’ve left without leaving behind a legal trust or will, you’ll create a lot of chaos for your next-of-kin.

When people think of wills, they only think of it as just that: a will. But people never really think if any wills are any different. There are some differences to a will, which usually are classified into 2 kinds: 

• Comprehensive Will
• Basic or Simple Will 

Not everybody needs a comprehensive will, but everyone should have at least a basic will. You may think “are there really any legitimate differences between a comprehensive will and one that is not?” 

Short answer: yes. There are differences between a comprehensive will and one that’s a basic will. 

Difference Between The 2 Wills 

Let’s establish the basic understanding of the 2 wills for you first. 

Basic Will 

A basic will usually include all the entitled people (called beneficiaries) who will be legally entitled to your assets after you have passed away. Basic will usually do not have a lot of monies and assets listed in them. A lot of the clauses are pretty simple and straightforward. 

It also can include a guardian for any underage children you have. In some basic wills, the will owner can also include a trustee, though it’s kind of not so popular. 

Comprehensive Will 

A comprehensive is one that includes everything a basic will has, and more. Comprehensive wills are usually more complicated as there are many facets to tackle. A comprehensive can be further divided into many kinds of wills. However, here are some of the more popular comprehensive wills. 

1. Testamentary Trust Will 

A testamentary trust will put some assets into a trust “in favor” for your named beneficiaries. In this kind of will, you will name a trustee to handle and oversee the trust. Most times people name a trustee in their will is because they still have underage kids. The will owners fear that they themselves will die before their underage kids become of legal age. 

In these kinds of wills, you can put your assets in trust and put multiple conditions in the inheritance. The conditions can be gradual based on beneficiaries’ age and factors. 

1. Joint Will

Joint wills are wills that are signed by 2 people or more. Each testator will have a separate will but mirrors a partner’s will. It can sometimes be called mirrored wills typically executed by spouses in favor of the other spouse to inherit everything. 

You will be unable to change executors, beneficiaries, and other provisions even after your spouse has passed away. Due to this inflexibility of joint wills, it can be seen and experienced as problematic for the surviving spouse. Since that the surviving spouse’s wishes may change after the death of his or her spouse. 

1. Living Will 

A living will isn’t one that distributes your property when you have passed away. Rather, it allows you to choose what medical treatments you’ll want to have when you become incapacitated. You could have a living death disease that renders you “functionless” when the disease gets worst. Or maybe you’ve gotten into a life-changing accident that you no longer can function as a proper human being. 

Then, in this case, you will have a living will in place. In this same will, you can name someone to make decisions on your behalf. You can also include advance healthcare directives for any of your future health issues. 

Which Will Should I Go For? 

It depends largely on your case. If you don’t have a lot of assets and monies, if you don’t have a lot of relatives to name for beneficiaries, then a simple will should do. 

If you have more assets and monies, then a more complicated will should be a better fit. It should make sense anyway since that you have more things to include and to think of. 

Not every will is for everybody. But there is a specific will for everyone with varying and specific assets in mind. 

An executor is someone who is appointed by the law courts to see through the distribution of a dead person’s will (if there is one). Even though if the deceased has no will, an executor will still be appointed on his or her behalf. The executor’s role is pretty universal across most, if not all cases. 

An executor is not to be confused with a trustee. Although both roles are similar and quite close, there are a few stark differences to both. 

Generally a trustee is appointed by the deceased when he or she is still alive. Everyone will need to agree to the trustee’s appointment legally. When the person passes away, the trustee will see to it that the assets and monies will be distributed according to what the will says. 

An executor’s role is similar to that of a trustee’s. However, there are a few things that an executor can do that a trustee cannot do. 

Executor’s Duties in Probate and/or Will 

Here are some jobs an executor has a distinctive role in playing. When you have passed away, these are what an appointed executor do: 

1. Find out where the will is 

The first thing the executor has to do is to locate the latest will of the deceased first. They will have to do this first before applying for the Grant of Probate with the original copy of the will. 

As soon as the latest original copy of the will has been located, the executor will then discuss the details of the will and aspects of the estate administration. Only then will the executor make sure that the probate process goes in a smooth process. 

2. Getting a lawyer to help with applying for a Grant of Probate 

After locating the will, the executor will work with a lawyer to apply for a Grant of Probate from the High Court. This can take anywhere from 3 to 6 months, which depends on how fast the court works with getting the application done. 

However, sometimes the Grant of Probate may take longer than 6 months to settle. Think about how sometimes the estate and money can be disputed by family members and people named in the will. There may be other issues surrounding it such as an unnamed property or bank account that are not listed in the will. With all that being said, the Grant of Probate may take some time to settle before any of the money and assets gets distributed accordingly. 

3. Settling any outstanding debts 

As soon as you have determined and be sure of what the deceased’s estates are, you will then have to notify the banks next. Let the banks know that the account owner has passed away (show proof where needed). The executor may need to set up a separate account for the purpose of administering the estate. 

After that, find out if the deceased owes any outstanding debts. It may be unpaid taxes or loans. There may be some people where the deceased may owe money to while they are still alive. Anyone who was owed money by the deceased will be given a period of time to submit their claims (with proof). If nobody comes forward after a while, then consider the case closed. The money and assets will be distributed accordingly to what the will says. 

Again, this can take quite a long time to settle. As sometimes there may be a lot of money to pay off. It’s not something that takes less than 2 years to settle. 

4. Determine and locate the named beneficiaries 

While you are settling all the debts and listing down the bank accounts and assets, you will also have to determine and identify the named beneficiaries in the will. Then start seeing how the assets and money are being distributed to each named beneficiary. 

If there are no named beneficiaries, then the executor will see to it that the assets and monies will be distributed according to the Malaysian Distribution Act. 

What Happens If No Executor is Appointed? 

If no executor is appointed, then the family of the deceased will have to agree who will be the Administrator(s). An Administrator will oversee the management and distribution of the assets and monies to the beneficiaries. Typically, the spouse of the deceased is the Administrator if the surviving children are not of legal age yet (18years in Malaysia). 

If the deceased’s spouse is an elderly person (or of unsound mind individual), then the deceased’s children will take up the role. However, the child has to be of legal age (18 years old) and of sound mind. 

As soon as an Administrator has been chosen, the other family members will sign a Renunciation. It means the other family members will renounce their right to apply in court as an administrator. They will sign a legal document known as “Renunciation”. 

As soon as everything has been settled, only then will the assets and monies be distributed as what the will has laid out for. If the assets and monies are not finalized, if the debtors have not completely been paid off, then the length of time for the money and assets to be distributed will take a long time to settle. 

Conclusion 

The bottom line is that an executor will most likely be appointed to help distribute the monies and assets alongside the trustee. Most times you will be unable to say to have an executor being appointed. However, there will be rare cases and special cases where an administrator will be appointed in place of an executor.

If you wish to disinherit someone in a will, it can be a complicated matter. There is no solid and straightforward way to disinherit someone in a will, however, there are a couple of ways that you are able to get around it. 

In this article, we will try our best to explain how you can remove someone in your will. It can be someone not related to you by blood. However, things can get complicated if it’s an immediate family member you choose to remove. 

How to Disinherit Someone In Your Will 

There are circumstances in your life where you no longer want someone to be part of your life anymore, including your will. You could be divorced or you may have gotten bad blood with a once close friend. It could be just because you no longer want an estranged child to have anything from you anymore. Whether you want that person to be part of your life anymore, here are some ways that you can remove someone from your will. 

The straightforward way: Revoke your current will and make a new one 

This is the most common and straightforward way of disinheriting someone from your will. You can choose to revoke your own will as and when you wish to. Any wills that are newly written will automatically revoke the last valid one. 

However, there will be circumstances where your “earlier” will is still valid. For example, if you have divorced for a few years already. You haven’t written a new will or updated it in the last few years. Naturally your spouse will still be included in the same will. If you have passed away, and your spouse’s name is not removed from the will, then your spouse will get whatever they are entitled to as per your will. 

As soon as you are divorced it does not mean your will and its contents are automatically revoked. It will still be valid for obvious reasons. Circumstances such as divorce do not automatically revoke your will. You will still need to write a new one to replace the current one you have. 

Disinheriting with extra steps: disowning your immediate family publicly 

It depends on how much energy you have for this one. You can choose to publicly disown your children, grandchildren, etc., publicly by announcing it in the newspaper. This may come across like a family drama series, but hey it happened before! 

Some people question whether it is legal to do things this way as it comes across as petty. However, there are certain reasons as to why some people do it this way. It could be because your child has committed a crime or owed money to several loan sharks. Certain circumstances may contribute to negative implications for the rest of the family’s waking life. In this sense, it’s totally understandable. 

But first you will need to write an official letter that is to be read and signed by both parties before it’s made valid. That means both parents and children will need to sign it in agreement. The letter will serve as a notice for disowning your family member. 

However, it’s not as easy and convenient as some people think it to be. It’s very likely that the disowned child will not want to sign the letter for obvious reasons. Sometimes, the disowned can never be found or contacted for a very long time, if ever. If the disowned cannot be found, then a police report will be lodged. 

Lodging a police report is good for circumstances such as when you have been continuously harassed by loan sharks whom your children owed money to. However, if the police report did not deter the loan sharks from harassing you, then this is what you should do next… 

Making a public announcement! 

When people say public announcements, they mean advertising. There are exceptions to this as you cannot simply update your Facebook, Twitter, YouTube, etc. There are specific methods when permanently disowning someone. You will need to publish it in a local newspaper. 

As soon as you have published it on a newspaper, you will never be able to go back on your words. You will have 0 chances of making amends. It does give the public awareness towards you severing ties with your family members. 

Once this is done, change your will immediately with the help of lawyers. There is a good chance that the disowned will come back for their share of your properties and assets. Work with your lawyers to ensure that all legal proceedings and property distribution are taken care of. 

Conclusion 

We hope that this article is able to shed some light to the burning question you have regarding making amends to your will. At times, disinheriting someone from your will may seem complicated. It doesn’t as soon as you have done sufficient research on the same matter. 

If you ever need any will writing services or advice about wills, do not hesitate to contact us. We are willing to assist you.