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Wills vs Trusts
Choosing the backbone of your estate plan
Clint Fischer
June 18, 2025
“We just want to keep the farm in the family. Do we need a will or a trust?”
A frequent question I get asked, as a hard-working couple sits across the table with a worn folder full of land deeds, equipment lists, and a handwritten note about “who gets what.” They aren’t trying to avoid taxes or game the system—they just didn’t want their kids stuck in court or forced to sell off land to settle things.
Like most farm families, they’d built something worth protecting—and wanted to make sure the transition wouldn’t tear it apart.
The backbone of any solid estate plan starts with one big decision: will-based or trust-based? Both paths can get the job done, but they work very differently—especially when land, equipment, and legacy are in play.
Here’s how to tell which one fits your family’s future.
Wills vs. Trusts: Choosing the Backbone of Your Estate Plan
When it comes to estate planning, the foundational decision is this: will your plan be built on a will, or a trust? Everything else flows from that choice.
Every estate plan has a backbone—a core document that governs what happens to your property and your people during three critical phases: while both spouses are alive, after one spouse dies, and after both spouses have passed. For most families, that backbone is either (1) a pair of wills or (2) a joint Revocable Living Trust (RLT). Understanding the structure, strengths, and shortcomings of each is the first step to building a plan that actually works when it matters most.
Let’s break down both approaches, side by side.
What Is a Will-Based Plan?
A will-based plan revolves around two individual wills—typically mirror-image versions called "I Love You" wills—where each spouse leaves everything to the other, then to the kids.
A will:
Appoints guardians for minor children
Names an executor to manage your estate
Directs the distribution of your assets
Only kicks in after death
But here’s the thing: a will doesn’t own anything. It’s not active until the testator (the person who wrote it) dies, and it doesn’t help during lifetime incapacity. It also doesn’t avoid probate—the court-supervised process that validates the will, settles debts, and oversees distribution.
Key Pros of a Will-Based Plan:
Lower upfront cost. Simple wills are less expensive to draft than a trust.
Straightforward to create. No asset transfers or retitling required.
Names guardians. Only a will can legally appoint guardians for minor children.
Key Cons:
Probate exposure. Most or all assets must pass through the probate court.
Higher administration costs. Probate can be slow, expensive, and public.
No incapacity planning. A will does nothing if you become incapacitated.
Limited privacy. Wills are public record once they go to court.
Difficult to update. Formalities like witnesses or notaries may be required each time you revise it.
What Is a Trust-Based Plan?
A trust-based plan is built around a joint Revocable Living Trust. It's a private document that acts like a holding container and instruction manual for your assets during your life, after your death, and even during periods of incapacity.
For farm families, a trust isn’t just an estate planning tool—it’s a way to protect a legacy. Farmland is often the family’s most valuable and emotionally significant asset. A Revocable Living Trust helps preserve that land for future generations, avoid forced sales, and maintain continuity of farm operations.
With an RLT:
You (the trustor) create the trust.
You transfer your assets into the trust’s name (this is called “funding” the trust).
You act as your own trustee while alive and able.
You name a successor trustee to take over when you can’t.
The trust owns and manages your assets without court involvement.
Key Pros of a Trust-Based Plan:
Avoids probate. Assets in the trust skip the court system entirely.
Continuity. The trust operates across all three phases of life and death.
Incapacity protection. A successor trustee can step in seamlessly.
Privacy. Trusts are private documents, not public court records.
Customizable. Trusts allow complex planning, like remarriage clauses, lifetime protection for kids, or staggered distributions.
Easier updates. Amendments don’t require the same formalities as a will.
Key Cons:
More upfront work. You must retitle assets into the trust.
Higher initial cost. Legal fees are typically higher than with wills.
Ongoing management. You must remember to keep the trust funded.
The Pour-Over Will
Even if you have a trust, you still need a will—a special kind called a pour-over will. It acts as a safety net, catching any assets you forgot to transfer into your trust and “pouring” them into it after your death. It also names guardians for minor children, which no trust can do.
In other words, a trust-based plan is never just a trust. It’s a trust plus a pour-over will.
How They Work During Life and Death
Let’s look at how these two systems function across the estate lifecycle:
1. While Both Spouses Are Alive
Will-Based Plan: Wills do nothing. If one spouse becomes incapacitated, you’re relying on powers of attorney and possibly the court.
Trust-Based Plan: The trust is already in effect. If one spouse becomes incapacitated, the other can manage all trust assets without court approval.
Farming is hands-on. If one spouse becomes incapacitated, the ability to sign contracts, manage loans, or buy livestock becomes critical. With a trust, the other spouse or a successor trustee can act immediately, without waiting on legal approvals.
2. After the First Spouse Dies
Will-Based Plan: Probate begins. The court appoints an executor and supervises the estate process.
Trust-Based Plan: The trust simply continues, often splitting into subtrusts for tax, remarriage, or legacy planning.
For farm families, this continuity can be crucial. It allows the surviving spouse or successor trustee to stay focused on day-to-day operations without getting tied up in court paperwork or waiting for legal authority to act.
3. After the Second Spouse Dies
Will-Based Plan: The estate enters probate again. Assets are distributed per the terms of the will.
Trust-Based Plan: The successor trustee distributes the trust assets privately, without court involvement, according to the instructions.
For a working farm, the delays caused by probate can be more than just inconvenient—they can derail planting schedules, equipment leases, or even next season’s harvest. A trust keeps operations running without court delays or red tape.
Small Estates Can Avoid Probate
It’s worth noting that in most states, there’s a shortcut for smaller estates called a small estate affidavit. If someone dies with assets in their individual name—but the total value falls below a certain threshold—probate can often be skipped entirely.
Instead of going through the full court process, heirs can complete a simple sworn statement (an affidavit) that allows them to collect and transfer the property. This can work for things like small bank accounts, vehicles, or even personal property—as long as the estate qualifies under that state’s rules.
Every state sets its own dollar limit. Some thresholds are relatively low; others are more generous. The rules also vary on which types of assets count and what kind of waiting period or notice is required.
Why It Matters:
If your estate is modest and simple, you may not need a full trust to avoid probate.
If your estate includes farmland, equipment, or business interests, you're far more likely to exceed those limits—and a trust-based plan is probably the safer bet.
If you forget to transfer one or two assets into your trust, and they’re under the small estate threshold, this process can act as a fallback.
Small estate affidavits can help avoid probate in limited situations, but they’re not a substitute for proper planning—especially if you own land, a business, or anything with significant value. They’re a good backup, not a primary plan.
Costs - expense now vs administration time
Let’s talk money. A will-based plan is generally less expensive to set up initially. The process is simpler, and there’s less legal work involved upfront. A trust-based plan, by contrast, typically requires more effort and legal guidance at the beginning, which can mean a higher initial investment.
But that’s only part of the picture.
The real expense often comes later—during administration. With a will-based plan, your estate will likely go through probate, a court-supervised process that can rack up legal fees, delay access to assets, and require outside professionals like appraisers or accountants. Those costs can quickly outweigh any savings from choosing the simpler plan upfront.
A trust-based plan avoids that court process entirely—so even though it may cost more to establish, it often results in significantly lower costs and hassle for your family down the road.
Flexibility and Control
Wills are blunt instruments. You can say who gets what, but once probate starts, the court is in control. There’s limited flexibility, and little privacy.
Trusts are surgical tools. This is especially useful for farm families with multiple children—some who farm, some who don’t. A trust can allocate farm assets in a way that keeps the operation running without forcing sales or creating tension among siblings.
A trust can also protect the farm from unintended heirs—such as a surviving spouse’s new family or a divorcing child’s ex. This is essential for families who want to keep the farm in the bloodline.
You can design distributions over time, protect inheritances from creditors, or prevent remarriage from derailing your family’s legacy. A well-drafted trust gives you options, not just instructions.
So Which Is Better?
There’s no one-size-fits-all answer. Here’s a quick cheat sheet:
You Might Prefer a Will-Based Plan If… | You Might Prefer a Trust-Based Plan If… |
|---|---|
Your estate is small and straightforward | You own real estate in more than one state |
You have minor children but few significant assets | You want to avoid probate entirely and keep your affairs private |
You want the least expensive option today | You’re thinking long-term about ease of administration and family burden |
You’re not ready to fund or maintain a trust | You want to plan for incapacity without relying solely on powers of attorney |
Your state’s probate process is relatively quick and inexpensive | You own a family farm or small business that needs to keep operating without court delays |
You’re comfortable with your plan being public record after death | You want to keep your estate details confidential and out of public court filings |
You have simple distribution wishes (e.g., everything to spouse, then to kids) | You want to provide customized distributions—such as phased inheritances, remarriage protections, or conditions on use |
You don’t own any titled assets outside your home state | You want to keep the farm or business intact and pass it to a specific heir or group (e.g., children active in the operation) |
Your children are all adults, responsible, and there are no blended family dynamics | You want to protect an inheritance from creditors, divorcing spouses, or poor financial decisions by your heirs |
You're okay with the possibility of delays in access to your estate after death | You want someone to step in immediately to manage property or business operations if something happens to you |
You want to designate guardians for your minor children | You have a successor generation already involved in the farm or business, and want to set them up for continuity and growth |
Your estate doesn’t include complex assets like business interests or multi-generational property | You need a plan that coordinates with buy-sell agreements, LLCs, or operating entities in your business or farm |
The Bottom Line
A will tells the court how to distribute your assets after you're gone. A trust keeps the court out of it—and keeps the operation running smoothly.
For farm families, the stakes are higher. You’re not just passing down bank accounts or personal items—you’re passing down land, equipment, a livelihood, and a legacy. If you have property, multiple heirs, or want to protect against complications like remarriage or family disputes, a trust-based plan often provides the flexibility and continuity you need.
That said, wills still play an important role. They’re essential for naming guardians for minor children and serve as a critical safety net, even in a trust-based plan.
The real question isn’t “Will or trust?”—it’s “What plan will protect what you’ve built and help your family carry it forward when you’re no longer here to lead them?” Choose the plan that protects your people, your property, and your purpose.
Because, LEGACY MATTERS.
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Thank you to all of you who are committed to preserving rural legacies.
-Clint
DISCLAIMER: What you just read is not legal advice. It is not an offer to represent you or perform legal services. Reading this doesn’t enter us into an attorney-client relationship. It’s just informational and hopefully a bit entertaining—take it as that and nothing more. When in doubt, talk to your own lawyer.