Difference Between a Will and a Trust?

Both a will and a trust can direct your property to the right people after your death.

A will serves this primary purpose but generally does little else. A trust, on the other hand—especially a living trust funded with your assets during your lifetime—can also:

• Avoid the probate process

• Provide asset protection in certain situations, such as lawsuits

• Minimize estate taxes

• Reduce the risk of disputes or legal challenges

The main reason some people choose only a will is that living trusts can cost more to set up initially and may involve more ongoing management. However, when you consider both the cost to establish and the cost to administer after death, a will alone and a trust paired with a pour-over will can be comparable.

The right choice depends on your current circumstances—your assets, your priorities, the people you want to protect, and your long-term goals.

Trusts

A trust can be used alongside a will to control when, how, and to whom a person’s assets are distributed after death.

When a trust is created during the Settlor’s (or Grantor’s) lifetime and significant assets are transferred into it, probate can often be avoided entirely. The trust continues to exist after the Settlor’s death and may remain in effect for many years.

Upon the Settlor’s passing, the Successor Trustee takes over, managing the trust assets and carrying out the trust’s instructions until it terminates and the remaining assets are distributed to the beneficiaries.

Benefits of a Trust

A trust can offer several advantages, including:

• Avoiding probate, which may reduce settlement costs—particularly if you own real property outside Hawaiʻi or have assets exceeding $100,000. Probate can cost $15,000 and more.

• Managing your assets during incapacity through a trusted individual of your choosing

• Providing for children or other beneficiaries after your death, with control over how and when they receive their inheritance

• Potential estate tax benefits in certain situations. We will discuss with you.

Because trusts can be complex, it’s important to discuss your goals, assets, and family circumstances with an experienced estate planning attorney before deciding if a trust is right for you.

Trustee vs. Personal Representative

The roles of a Trustee and a Personal Representative are similar—both must:

• Safeguard and manage assets

• Pay valid debts and expenses

• Distribute assets to the beneficiaries named in the governing document

A Successor Trustee can typically begin their duties without a court appointment, though certain institutions—such as banks or investment firms—may require specific documentation before releasing or transferring assets.

Unlike probate, a trust is usually administered without ongoing court oversight—and often with no court involvement at all. However, a Trustee must still follow a fiduciary duty, meaning they are legally obligated to act in the best interests of the beneficiaries. If a Trustee fails to meet this duty, the beneficiaries have the right to take the matter to court.

Common Questions About Personal Representatives and Trusts

Does the Executor Need to Sign the Will or Trust?
No. The executor (or personal representative) does not need to sign your will or trust document. However, we recommend speaking with them beforehand to ensure they are willing and able to take on the responsibility.

Does the Executor Need to Live in Hawaiʻi?
No. An executor or personal representative does not need to reside in Hawaiʻi. In many cases, most of the estate administration—such as hiring a real estate agent—can be handled remotely by phone or email. That said, managing tangible personal property (e.g., cars, jewelry, artwork) can be more challenging from a distance.

When Does a Trust Become Effective?
A trust becomes effective as soon as it is signed—typically during your signing meeting with your attorney.