A Will or Trust?

By:Robert Moore, Tuesday, August 16th, 2022

Legal Groundwork

A common question when starting the estate planning process is: do I need a will or trust?  There are a number of factors that must be considered before this question can be answered.  A trust is a common estate planning tool but not everyone needs one.  Often times, the best plan includes only a will.

The following are some of the factors to consider when deciding between a will or trust:

Complexity of Plan

The more complicated the plan, the more likely a trust is needed.  Complexity might include addressing on-farm and off-farm heirs issues, buy out of assets at discounts with installment payments, long-term leases, options, right of first refusals and so on.  Wills are much more suitable for plans where all the assets go equally to the beneficiaries without much complexity.

The average person can usually implement an effective estate plan without a trust.  However, most farmers are not average people.  Farmers tend to have more assets, more complex assets, on-farm and off-farm heir issues and business succession issues.  Farmers tend to need trusts much more than non-farmers.

Avoiding Probate

Any asset that is controlled by the will goes through probate.  Probate can cause estate administration to be slower, more burdensome and more costly.  Assets that are controlled by a trust are not subject to probate.  Avoiding probate is generally a good strategy for estate planning.

Most probate can be avoided even without a trust.  All titled assets can include payable on death or transfer on death designations.  For example, bank accounts can include payable on death beneficiaries which allow the funds to go to the beneficiaries upon the death of the owner without going through probate.  Assets without titles can only avoid probate by using a trust.  These untitled assets include grain, crops, livestock and machinery.  For farmers owning large amounts of these untitled assets, a trust may be needed to avoid probate.

Concerns About Heirs

Sometimes, there may be concerns about how an heir might manage their inheritance.  Maybe they have poor spending habits, have a drug/alcohol problem or are heavily in debt to creditors.  Trusts can hold assets for beneficiaries and allow the assets to be managed by a trustee, all outside of probate.  Wills can also hold assets in a trust but will involve the probate court, making managing the trust more cumbersome.  For people who may have concerns about how their heirs might manage their inheritance, a trust is likely a better option than a will.

Second Marriages

A trust is often a good strategy for married couples who have children from previous marriages.  A trust allows the deceased spouse to provide for the surviving spouse while ensuring that those assets ultimately end up with the deceased spouse’s children.  Wills tend to leave everything to the surviving spouse then to children.  A will plan could cause both spouse’s assets to only go to the surviving spouse’s children.  Trusts are often the better option for second marriages.

Transition of Farming Operation

As stated above, crops, livestock and machinery can only avoid probate by using a trust.  Sometimes, these assets get stuck in probate for some time and cause problems for continuing the farming operation. Farmers with large amounts of grain, crops, livestock and machinery should consider a trust for their estate plan.

Legal Fees.

Wills generally have the advantage on legal fees.  Trusts, being more complicated documents, typically cost more to set up than wills.  The cost difference can be several thousands of dollars.  If minimizing legal fees for the estate plan is a priority, a will may be the better option.  It is important to note that spending more money on a trust may save the beneficiaries even more by making the estate administration easier and more efficient.  Spending a few thousand dollars more on a trust may save many thousands of dollars on estate administration.


The above factors are just a few of the many factors to consider when deciding between a will or trust.  For many people a will is completely adequate for an estate plan but for many farmers a trust is the better option.  An estate planning attorney will be able to assist with determining which strategy is better.  For a more thorough discussion on wills, trusts and other aspects of estate planning, see the Planning for the Future of Your Farm bulletin series at go.osu.edu/farmplanning.  


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