A Last Will and Testament is similar to a Trust document in only a few ways. Just like a Trustee is named in a Trust, the Testator in a Last Will and Testament nominates a Personal Representative to carry out the Testators wishes for distribution upon his/her death. The Personal Representative pays creditors of the Estate and files a final tax return. Just like a Trust describes the Grantor’s wishes for distribution of his/her estate, the Testator in a Last Will and Testament describes his/her wishes for distribution of his/her estate.
So what is the difference? A Last Will and Testament gets filed with the Probate court when the Testator dies and the Probate process is started by appointing the Personal Representative that the Testator nominated in his/her Will.
The Trustee in a Trust assumes their role as Successor Trustee effective upon the death of the Grantor with no Court appointment.
So why would someone choose a Last Will and Testament over a Revocable Trust? Answer: personal choice. Many of my clients are indifferent about going through Probate and choose to prepare a Last Will and Testament.
Without a Last Will and Testament however, the Court will appoint any person who qualifies by statute to be appointed as Personal Representative if a Last Will and Testament was not prepared and a probate proceeding is required.
A Last Will and Testament at minimum will give the Testator a little bit more control over who should be appointed to handle the distribution of his/her estate.