Will vs. Trust vs. Dying Without an Estate Plan

Joseph D'Urso
Jun 26
3 min read

One of the most common questions people ask when beginning the estate planning process is whether they need a will, a trust, or both.

The answer depends on your family, your assets, and your goals. Understanding how each option works can help you make informed decisions and avoid leaving important matters up to New Jersey law.

What Happens If You Die Without a Will?

If you pass away without a valid will or trust, you are considered to have died intestate. In that situation, New Jersey's intestacy laws determine who inherits your property.

Your estate will generally pass through probate, where the court oversees payment of debts and distribution of your assets according to state law rather than your personal wishes.

Depending on your family situation, your spouse, children, parents, or other relatives may inherit portions of your estate.

Dying without an estate plan also means:

You cannot choose who will administer your estate.
You cannot decide who should care for your minor children.
Your beneficiaries receive assets according to state law instead of your instructions.
Probate records generally become part of the public record.

Simply put, dying without an estate plan means the state makes many important decisions on your behalf.

What Does a Will Do?

A Last Will and Testament allows you to decide how your assets should be distributed after your death.

With a properly drafted will, you can:

Name your beneficiaries.
Appoint an executor to administer your estate.
Nominate a guardian for minor children.
Create trusts for children or other beneficiaries when appropriate.
Direct how and when assets should be distributed.

Although a will gives you significantly more control than dying intestate, assets governed by the will generally must still pass through probate before they can be distributed.

For many families, a will provides an excellent foundation for an estate plan.

What Does a Revocable Living Trust Do?

A revocable living trust is another estate planning tool that can simplify the transfer of assets while providing additional flexibility.

Unlike a will, assets that are properly transferred into a trust generally avoid probate after your death.

When you create a revocable living trust, you typically serve as your own trustee while you are alive, allowing you to maintain complete control over your assets. You also name a successor trustee who will manage and distribute trust assets if you become incapacitated or after your death.

Potential benefits of a revocable living trust include:

Avoiding probate for properly titled assets.
Maintaining greater privacy.
Providing ongoing management of assets for beneficiaries.
Planning for incapacity.
Greater control over how and when beneficiaries receive inheritances.

A trust can be particularly valuable for families with significant assets, real estate, blended families, or beneficiaries who may benefit from long-term asset management.

A Trust Must Be Properly Funded

Creating a trust is only one step in the process.

For a trust to accomplish its intended purpose, assets generally need to be transferred into the trust or properly designate the trust as beneficiary when appropriate.

If assets remain in your individual name without beneficiary designations, they may still have to pass through probate.

Funding your trust is an essential part of effective estate planning.

Do You Still Need a Will If You Have a Trust?

Yes.

Most people with a revocable living trust also have a pour-over will.

A pour-over will directs that any assets left outside the trust at the time of death be transferred into the trust through probate. It also allows parents to nominate guardians for minor children, making it an important part of a complete estate plan.

Which Estate Planning Option Is Right for You?

There is no one-size-fits-all answer.

Some individuals need only a carefully prepared will. Others benefit from incorporating a revocable living trust into a more comprehensive estate plan. The right approach depends on your family, financial circumstances, long-term goals, and the type of assets you own.

An experienced estate planning attorney can help determine which strategy best fits your situation.

Estate Planning in Bergen County, NJ

At The Law Offices of Joseph D'Urso III, we help individuals and families throughout Bergen County create estate plans that reflect their goals and protect the people they care about most. Whether you need a will, a revocable living trust, or a comprehensive estate plan, we can explain your options and develop a strategy tailored to your needs.