Estate plans usually follow one of two basic approaches: a will-based approach, or a trust-based approach. Which approach is right for you and your family?

Individuals and families are often concerned about ensuring that their estates can avoid probate court. Avoiding probate can save our loved ones a lot of time and stress after we pass away. And, avoiding probate may reduce (but not eliminate) the chances people will fight over our property after we are gone. Sometimes, folks are also interested in avoiding probate in order to preserve their family’s privacy, because every probate case is a matter of public record.

First, we should clear the air about some assumptions we might have about wills versus trusts:

• It is incorrect to assume that a trust is the only way to avoid probate;
• It is incorrect to assume that a trust is always the best way to avoid probate;
• It is incorrect to assume that a trust will prevent our loved ones from fighting over our property after we are gone, even if there is a no contest clause in the trust;
• It is incorrect to assume that a trust will always and forever preserve our privacy in all circumstances;
• It is incorrect to assume that once we set up a trust, everything will always go smoothly going forward.

The fact is, a will-based estate plan can do a perfectly good job of avoiding probate court if properly set up. And, a trust-based plan will end up in court if the trust is not properly funded or if people are fighting over the terms of the trust.

Informed decisions have to be made when setting up or revising your estate plan. It is always wise to talk with an experienced estate planning attorney about your circumstances, goals, needs, and wants for your estate planning. At The Law Shop Minnesota, we listen to every client’s story and work with each client to tailor a plan suited specifically to their needs. And, sometimes that means less expensive, less cumbersome options are appropriate, such as a will-based estate plan.

Choosing an approach

Before starting to think about which approach might be right for you, back up for a second and consider this: nothing - and I mean nothing - is more important to achieving your estate planning goals after creating your estate plan than periodically reviewing your plan to make sure it is fully up to date. It’s like changing your car’s engine oil. You can buy a Cadillac estate plan (such as a fancy trust-based estate plan), but if you don’t maintain it, it’s going to fail you when you need it most. Estate planning is never a one and done deal: once you set it up, you also need to maintain it.

Many factors go into choosing a will-based or trust-based estate plan. It is a good idea to discuss these factors and anything else that applies to your situation with your estate planning attorney so that you can learn about how these factors affect you and your family and so that you can make an informed decision about the best approach to estate planning for you and your family.

Some top level considerations:

• What kinds of assets do you own?
• Can most or all of the assets be taken care of through POD / TOD (Pay On Death / Transfer On Death) designations?
• Do you have specific wishes for bequests that require more fine tuning than a POD / TOD designation can provide?
• Do you own more than one piece of real estate?
• Do you own real estate outside of Minnesota?
• Are you thinking about tax efficiency planning, in light of the Minnesota individual $3 Million estate tax exemption limit with no portability?
• Are you in a blended family?
• Do you have young children?
• Do you have children with special needs?
• Do you have concerns about your adult children’s ability to properly manage an inheritance?
• Do you have concerns about protecting your loved ones from creditors and predators?
• Do you or any of your loved ones have chronic or severe health problems?
• What is your ability and desire to maintain a more or less complex estate plan?

Learn More About Wills and Trusts

Deciding between a will and a trust can feel overwhelming, but the right choice depends on your goals, family needs, and the size of your estate. At The Law Shop Minnesota, we help individuals and families understand their options and create customized estate plans that provide clarity and peace of mind. Louise Livesay and Peter Ladwein bring decades of combined experience in estate planning and family law, offering practical guidance with a compassionate approach. Whether you’re considering a will, a trust, or a combination of both, we’re here to help you protect your legacy and your loved ones.

To schedule a consultation — in person or via Zoom anywhere in Minnesota — please contact us online or call (651) 344-6100.