Creating a Trust in Your Will vs. Creating a Living Trust: Part 1
March 6, 2026

You've probably heard that trusts help families avoid probate court and protect assets for the people you love. Maybe you've even talked to a lawyer who mentioned including a trust in your will. It sounds like a good solution, but here's what most people don't realize: a trust created in your will works very differently from a living trust you create today, and the difference will have a major impact on your loved ones when you die.


Both options use the word "trust," which makes them sound similar. But the experience your family will have after your death depends entirely on which type you choose. More importantly, these different approaches serve different goals, and understanding what you're actually trying to accomplish is the most critical part of making the right choice.


In this two-part series, I'll help you understand what each type of trust actually does and how to choose the approach that matches what matters most to you and your loved ones. Here in Part 1, let’s dive into what happens when you create a trust in your will and help you evaluate what you're really trying to achieve.


What Happens When You Create a Trust in Your Will


A trust created in your will, called a testamentary trust, only comes into existence after you die, and after your executor has navigated a court process to establish the trust. Your will might say something like "upon my death, I direct that my assets be held in trust for my children until they reach age 25." This provision offers some protection by controlling when your children receive their inheritance. But it doesn't keep your family out of court.


All wills must go through probate court. Therefore, when you die with a will containing trust provisions, your loved ones must go through probate before the trust can be created. This process typically takes months, sometimes years. While your loved ones wait for the process to unfold, your assets are basically frozen, potentially putting your loved ones in an unstable financial position.


Here’s what the probate process looks like:

  • Your family must first locate your original will and file it with the probate court.
  • The court then officially appoints your named executor, who must notify all potential heirs and creditors of your death.
  • Your executor must gather all your assets, have them appraised, pay your debts and taxes, and prepare detailed accounting reports for the court.
  • Only after the court reviews and approves everything can your assets be distributed into the newly created trust, which must be approved by the judge.


Your family may also face significant costs. Probate involves court filing fees, legal fees, appraisal costs, and sometimes accounting fees. These expenses come directly out of your estate, reducing what's left for your loved ones. In many states, attorney fees and executor fees are calculated as a percentage of your estate's value. And because probate is a public court process, anyone can access information about what you owned and who you left it to.


Here's what really matters: you're essentially doing double the work to achieve the same outcome you could have accomplished with a living trust, but with added expense, a longer timeline, and far greater possibility for family conflict. You're creating a trust that provides the same protections a living trust offers, but you're forcing your family to go through an entire court process first. And that's only part of the problem. Because a will only takes effect when you die, it also leaves a critical gap in protection while you're still alive.


What a Will Can't Do While You're Still Alive


A will only takes effect when you die, which means it does nothing to protect you if you become incapacitated first. Most people rely on a Power of Attorney, or “POA,” to authorize someone to manage their finances if they're unable to do so. But here's the catch: a POA automatically ends the moment you die.


That creates a dangerous gap. The second you pass, your POA's authority disappears — but your executor has no power either until the probate court officially appoints them. Accounts get frozen, bills go unpaid, and your family can't touch a thing while they wait. A living trust eliminates this gap entirely. Because it exists right now, your successor trustee has uninterrupted authority to manage your assets through incapacity and seamlessly at your death — no court approval required, no delay, no financial limbo for your family.


All of this brings us to the most important question: what are you actually trying to accomplish? The gaps we've just covered - probate delays, frozen accounts, the POA cliff - aren't inevitable. They're the result of choosing a planning tool without first understanding your real goals.


What Are You Really Trying to Accomplish?


Before you can decide between a testamentary trust and a living trust, you need to get clear about what you're actually trying to achieve. Most people know they want "a trust" because someone told them trusts are good planning tools. But trusts accomplish different things depending on how they're structured.


Is your primary goal avoiding probate court? If keeping your family out of court matters to you, then how you create your trust makes a huge difference. A testamentary trust doesn't avoid probate. A living trust does. If probate avoidance is your main concern, that answer alone might determine your choice to create a living trust.


Do you want to control how and when your beneficiaries receive their inheritance? Maybe you have young children, and you don't want them inheriting everything at age 18. Both testamentary trusts and living trusts can accomplish these distribution goals. From a distribution control standpoint, both types of trusts can be structured identically. However, assets will not be available for your children during the probate process, so if availability is a concern for you, a living trust may be a good choice.


Do you want to protect your assets if you become incapacitated before you die? This is where the timing of trust creation makes a critical difference. A testamentary trust doesn't exist until you die, so it offers no protection during your lifetime. If you become unable to manage your affairs, your family would need to pursue guardianship or conservatorship proceedings in court. A living trust, however, allows your chosen successor trustee to step in and manage things for you without court intervention.


Understanding your true priorities helps clarify which approach makes sense. If your goals center entirely on controlling distributions and you're not concerned about probate costs or delays, then a testamentary trust might suffice. But if you want probate avoidance, incapacity protection, or immediate access to trust protections when you die, then the timing of when you create the trust becomes critically important.


Next week, in Part 2, I'll explain how living trusts work and how to make the final decision about which approach fits your situation.


How I Help You Identify What Matters Most


As a Personal Family Lawyer® Firm, we don't focus on the documents themselves because we believe documents are the byproduct of good planning. Planning starts with getting clear on what matters most, so our Life & Legacy Planning® process starts with education and understanding during a Life & Legacy Planning Session. During your session, you’ll get clear about what would actually happen to your family when you die or if you become incapacitated. We'll walk through the real costs, the real timeline, and the real experience your loved ones will face. Then we'll identify your true priorities so you can make an informed decision and create the right plan for you.


Click here to schedule a complimentary 15-minute discovery call to get started:


calendar.trustamdlaw.com/widget/booking/JDAbqicl45eEE3dRRmpb


This article is a service of AMD LAW, a Personal Family Lawyer Firm. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Life & Legacy PlanningⓇ Session, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life & Legacy Planning Session.


The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own, separate from this educational material.

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Divorce Doesn't Update Your Estate Plan: Here's What Does

June 21, 2026
If you are a divorced father, you already know something that most married fathers don't: showing up for your kids takes more deliberate effort than it looks like from the outside. You have worked on the relationship you have with them. You know which weeks are yours and how to make them count. You have figured out the handoffs, the schedules, and the way to stay present even when circumstances make it complicated. What I find almost universally, when a divorced father walks into my office, is that the one thing he has not done is update his estate plan to match the life he is actually living. The plan from before the divorce, or the one hastily put together during it, is almost certainly not the plan his children actually need. I sat down recently with a father who had been divorced for twelve years. He was getting remarried and came in thinking he needed to update a few things. When we completed the asset inventory together, what we found: his ex-wife was still named in his Will. She was still the primary beneficiary on multiple financial accounts. He had no idea. He had assumed the divorce decree nullified the Will. It did not touch either document. He was not surprised that this kind of thing could happen. His own father had remarried without updating his plan, and when his father died, he inherited nothing. He knew exactly what the gap could cost. He still had the gap. We corrected the Will, updated every beneficiary designation, and connected him with a family law attorney to discuss a prenuptial agreement before the wedding. His new partner came in and built her own plan alongside his. Everyone is protected. That is what this process is supposed to do. As a Personal Family Lawyer® firm leader (or PFL® attorney), closing that gap is one of the most important things I do. And the gap is almost always larger than fathers expect. What the Divorce Decree Doesn't Cover The first thing I explain to every divorced father who sits across from me: your divorce decree and your estate plan are two entirely different documents that solve two entirely different problems. The divorce decree governs what happens while you are alive. It determines custody, child support, and the legal end of the marriage. It does not say anything about what happens to your children if you die. Here is what most divorced fathers assume, and what is almost never true: that the custody agreement handles the guardianship question. It does not. If you die and your children's other parent is alive and legally fit, the surviving parent will almost certainly get full custody. That is the default rule in virtually every state, and your estate plan cannot override it. But that is not the planning question I am most concerned about. The question is what happens if both parents are gone. In a divorced family, that question is often more complicated than in an intact one. Extended families that were divided by the divorce are now divided over the children. A sibling of yours and a sibling of your ex may both feel certain they are the right choice. Without a legal document that names your preference, no one's opinion carries legal weight. A judge who has never met your family will make the decision. I have watched this happen. The conflict that erupts between divided extended families over an unnamed guardianship is one of the most painful things I see in my work, and it is entirely preventable. The bottom line: Your divorce decree governs your life while you are here. Your estate plan governs what happens to your children when you are not. Most divorced fathers have addressed the first. Almost none have updated the second. The Money Problem Most Divorced Fathers Don't See Coming Even when a divorced father has technically updated his estate plan, there is a gap that almost always gets missed: financial control. Here is what I encounter more than any other scenario. A divorced father dies without a trust in place. His assets are meant for his children. But because the children are minors, those assets pass under the control of the surviving parent, their ex, as custodian until the children reach adulthood. The money he intended for his kids ended up being managed by the person he divorced. That is not always wrong. But it is rarely what he planned for. The other version I see frequently: beneficiary designations that were never updated after the divorce. A life insurance policy still names his ex-spouse as the primary beneficiary. A retirement account that was supposed to go to the kids, but was never changed. In some states, divorce automatically revokes a beneficiary designation to a former spouse. In others, it does not. Most fathers have no idea which situation they are in until it is too late to fix it. A trust changes all of this. Assets held in a properly structured trust for the children's benefit are managed by a trustee the father chooses, not by whoever happens to be the surviving parent. The money reaches the children the way he intended, regardless of what the post-divorce relationship looks like. Here is what I also see: a divorced father who took an afternoon to put a trust in place, correct his beneficiary designations, and update his executor. When he died unexpectedly two years later, everything went exactly where he intended. His chosen trustee managed the assets. His children were taken care of the way he had planned. That outcome is not complicated. It is just what happens when the plan matches the life. The bottom line: Without a trust, assets meant for your children may end up controlled by your ex. Without updated beneficiary designations, the money may not reach your children at all. These are not hypothetical risks. They are the ones I help families untangle, almost always after the damage has already been done. The 72 Hours Nobody Plans For The scenario that stops divorced fathers cold when I describe it is this one. Your children are with you for the week. You are in an accident. Your partner, the person who knows your children, who your children know and trust, is the one at the scene trying to help them. Your partner has no legal authority to authorize their medical care. No right to make decisions on their behalf. Without a specific legal document giving them that authority, your partner is a legal stranger to your children in the eyes of the hospital, regardless of how long they have been in their lives. I had a client call me from a hospital parking lot. Her partner had been in a serious accident. His children, ages seven and nine, were with them when it happened. She could not get information. She could not authorize anything. She sat outside for hours while his children waited inside, because no document existed that said she had any standing to help. This is the gap the Kids Protection Plan® services close. It is one of the first things I put in place for every divorced parent I work with. The Kids Protection Plan package gives a designated caregiver the immediate legal authority to step in for your children before any court process begins, right now, tonight, in the hours when the most damage happens and the least planning typically exists. The bottom line: The 72-hour gap is real, and it is not addressed in a divorce decree or a standard estate plan. For divorced fathers, especially, the person most likely to be present in a crisis may have no legal standing at all. That has to be fixed on purpose. What a Complete Plan for a Divorced Father Actually Addresses A Life & Legacy Plan built for a divorced father is not a standard estate plan with a few names changed. It reflects the specific structure of the family he actually has. That means addressing: A named guardian for the scenario where both parents are gone. The legal document that tells the court who you want, why you want them, and gives your preference actual legal weight. A trust that protects your children's assets. Assets that pass to your children are managed by someone you trust, not controlled by whoever happens to be the surviving parent. Updated beneficiary designations. Every life insurance policy, retirement account, and financial account is reviewed and corrected to reflect your current intentions. A plan for the family you have now. If your life has changed since the divorce, new partner, new children, new assets, the plan has to reflect that. Immediate authority documents. The Kids Protection Plan that gives your designated caregiver legal authority in the first 72 hours, before the rest of the plan can activate. The question is not whether your children are loved. Every divorced father I work with loves his children. The question is whether the plan matches the life you are actually living. The bottom line: A complete plan for a divorced father is built around the family he actually has, not the one the standard estate plan assumes. What You Can Do Right Now What I find in this work is that an updated plan does more than protect assets. It reflects who you are as a father. It carries forward the values that matter to you, the people in your children's lives that deserve to stay there, the way you want them cared for if you are not there to do it yourself. For fathers in blended families, especially, a plan built around the family you actually have is an act of intention. It tells your children: I thought about you. I planned for you. The divorced fathers who have the right plan in place are not always the ones who had the most complicated divorce. They are the ones who, after the dust settled, made sure the plan reflected the life they were actually living. As a Personal Family Lawyer firm, I work with divorced and separated fathers to build a Life & Legacy Plan that closes the gaps the divorce decree left open: the guardianship question, the beneficiary designations, the trust that keeps your children's assets in the right hands, and the immediate authority documents that protect them right now. The relationship doesn't end when the documents are signed. When something happens, your family knows to call me. Schedule a complimentary 15-minute discovery call and let's find out where you stand: calendar.trustamdlaw.com/widget/booking/JDAbqicl45eEE3dRRmpb This article is a service of AMD LAW, a Personal Family Lawyer Firm. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Life & Legacy PlanningⓇ Session, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life & Legacy Planning Session. The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own, separate from this educational material.

Your Heir Is Already in the Building: What Has to Be in Place Before the Transition Happens.

June 21, 2026
Think about why you built the business. For most business-owning fathers, the honest answer involves their family. The people they wanted to provide for. The thing they wanted to leave behind. The chance to hand something real to the next generation. For a lot of those fathers, the next generation is already there. A son or daughter who joined the business, learned it from the ground up, and is already, in every practical sense, running it. The clients know them. The employees trust them. The transition that everyone talks about as a future event is, functionally, already underway. As a LIFTed AdvisorsTM firm, we work with families in exactly this situation. And what we find, almost without exception, is the same gap: the succession that everyone privately understands has never been put into a legal document. The transition that feels like a formality is not protected at all. What "Obvious" Costs When There's No Plan Here is what we see happen when a business owner dies without formal succession documents, even when the heir has been running the business for years. The ownership interest passes through probate, the court process that distributes a deceased person's assets. The business enters that process publicly, and without any guarantee of speed. The heir who has been running day-to-day operations has no legal authority to make decisions on behalf of the business during that time. Contracts, payroll, vendor agreements, everything that requires an authorized owner's signature is in limbo. The business, meanwhile, does not pause. Clients have needs. Employees have questions about the future and need to continue being paid on time. Competitors are watching. I worked with a family after a business owner died unexpectedly at sixty-one. His daughter had been running operations for eight years. Every client relationship ran through her. When her father died without succession documents, she could not sign a single contract on the company's behalf while the estate was in probate. A major mid-bid project was delayed for four months. Two key employees left in the first two months because the future of the company felt uncertain. By the time the estate resolved, the business had lost nearly forty percent of its value. The daughter inherited the business. But what she received was far less than what her father had built, and far less than it would have been worth with the right documents in place. The bottom line: "Obvious" is not legally binding. Without succession documents that specifically name who takes over and under what conditions, the transition everyone assumes will happen may still happen, but the business that arrives on the other side may not be the one the founder built. The Sweat Equity Problem There is a deeper issue for families where a child has been building the business alongside the founder: what they have earned is not reflected anywhere in writing. Your child has contributed years of work. They have brought in clients, built systems, managed employees, and helped grow something worth more today because of their involvement. By any reasonable measure, they have earned more than a sibling who was never part of it. The law does not know that. Without a legal agreement that specifically recognizes their contribution, whether a buy-sell agreement, a gradual ownership transfer, or a formal inheritance structure that accounts for sweat equity, the law distributes ownership equally among heirs at distribution. Years of work, hundreds of client relationships, a decade of operational leadership: none of it translates into a larger ownership share unless a document says so. We have seen this create two painful problems. The first: the heir who built the business alongside the founder receives the same share as a sibling who was never involved, which is not fair by any reasonable measure. The second: the dispute that follows between siblings who define "fair" completely differently can fracture a family permanently, at the moment they are already grieving. The bottom line: Sweat equity is real. The plan has to recognize it. Without a document that addresses what the working heir has built, the outcome at distribution may bear very little resemblance to what the founder intended. The Other Children When a business owner wants to leave the company to the child who has worked in it, there is a fairness question the plan also has to address: what about the other children? The child who receives the business receives an operating company with clients, employees, and revenue. What do the other children receive ? If the answer is "other assets," those assets have to actually exist and be roughly equivalent in value to what the business heir receives. Without a plan that deliberately balances the distribution, the result can feel like favoritism even when it was never intended that way. The families I work with who navigate this best are the ones who planned for it: they knew what the business was worth, they understood what the overall estate looked like, and they designed their Life & Legacy Plan so that every child received something that reflected both their relationship to the business and the founder's intentions for all of them. For example, life insurance structured to equalize the distribution, other assets allocated deliberately. Or A buyout structure that compensates non-business heirs over time are all strategies to equalize distributions across a family. The families who struggle are the ones where the business went to one child because "everyone knew" that was the plan, and the other children received whatever was left, without a conversation that ever made the intention explicit. The bottom line: Succession planning for a business staying in the family is not just about the heir who takes it over. It is about every child the founder is trying to take care of. The plan has to account for all of them. What Has to Be in Place Across All Four Systems Passing a business to the next generation requires intentional decisions across the full LIFT - Legal, Insurance, Financial & Tax® framework. A gap in any one of them can undo the others. Legal. The succession documents have to name the heir specifically, address the timeline and conditions of the transfer, and account for every family member's interest. The operating agreement or shareholder agreement needs to reflect who takes over and under what conditions. A buy-sell agreement should address what happens if the founder dies before the transition is complete and who has authority to run the business in the interim. Insurance. Key person insurance protects the business from the financial impact of losing its founder before the transition is complete. Life insurance can be structured to equalize what non-business heirs receive, solving the fairness problem without diminishing what the business heir gets. Beneficiary designations must match the plan. Financial. A current business valuation is not optional. We cannot plan a transfer we have not measured. The valuation establishes what the business is worth, what each heir's share represents, and whether the overall estate is balanced. Transfers during the founder's lifetime, structured gifts, installment sales, and partial transfers often preserve more value for the family than transfers at death. Tax. The tax implications of a business transfer depend significantly on how and when it happens. Planning while the founder is still active almost always produces better outcomes than untangling the tax picture afterward. Who receives what, and in what form, affects both the federal and state tax picture in ways that are very difficult to correct after the fact. The bottom line: If your child is already running your business, the succession plan is not a distant question. It is the most important plan your family does not yet have. A LIFT Business Breakthrough Session is where we build it together. What You Can Do Right Now The businesses that successfully pass to the next generation are not always the most valuable ones. They are the ones where the founder made the transition intentional. If your heir is already in the building, the transition feels natural. That feeling is real, they have earned it, and the business shows it. But the plan has to make it legal. As a LIFTed AdvisorsTM firm, we work with business-owning fathers to build the succession structure that matches what they have already built and makes it possible for the next generation to actually receive it. A LIFT Business Breakthrough Session is a one-hour conversation that looks at the legal structure, insurance coverage, financial picture, and tax situation together, and identifies exactly what has to be in place for the transition to happen the way you intend. Schedule a complimentary, one-hour LIFT Business Breakthrough Session and let's make sure the business passes the way you intend:  calendar.trustamdlaw.com/widget/booking/JDAbqicl45eEE3dRRmpb This article is a service of AMD LAW, a Personal Family Lawyer Firm. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Life & Legacy PlanningⓇ Session, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life & Legacy Planning Session. The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own, separate from this educational material.