What is the difference between a will and a living trust?

Question

Accepted Answer

Based on the Arizona sources provided, here is what can be said about the difference between a will and a trust (note: the sources do not define the term "living trust" specifically, so I can only describe what the sources say about wills and trusts generally):

Wills:
- A "will" includes a codicil and any testamentary instrument that appoints a personal representative, revokes or revises another will, nominates a guardian or conservator, or excludes or limits the right of an individual or class to succeed to property passing by intestate succession; a will may be a paper will or an electronic will .
- A paper will must be in writing, signed by the testator (or by another individual in the testator's conscious presence and at the testator's direction), and signed by at least two witnesses .
- A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator's death .
- To be effective to prove the transfer of any property or to nominate an executor, a will generally must be declared valid through a statement of informal probate by the registrar or an adjudication of probate by the court, subject to a limited exception .

Trusts:
- A "trust" includes an express trust, private or charitable, with any additions, wherever and however created, and includes a trust created or determined by judgment or decree .
- A trust may be created by transfer of property to another person as trustee during the settlor's lifetime or by will or other disposition taking effect on the settlor's death, by declaration by the owner of property that the owner holds identifiable property as trustee, or by exercise of a power of appointment in favor of a trustee .
- A trust is created only if the settlor has capacity, indicates an intention to create the trust, the trust has a definite beneficiary (or is a charitable, animal-care, or noncharitable purpose trust), the trustee has duties to perform, and the same person is not the sole trustee and sole beneficiary .

Key distinctions supported by these sources:
- A trust can be created and take effect during the settlor's lifetime, while a will is a testamentary instrument that disposes of property at death , , .
- A will generally must go through a probate statement or adjudication to be effective to transfer property, whereas the sources provided do not impose any comparable probate requirement on trusts .

Limitations: The sources provided do not directly address the practical differences commonly associated with "living trusts" (such as probate avoidance, incapacity planning, or revocability), and they do not define the term "living trust." For advice on which instrument suits your situation, consult a licensed Arizona attorney.