This is the fifth part in a series of blog posts that compare wills and trusts in the following areas: 1. Cost, 2. Post-Death Process, 3. Getting Money to Minors, 4. Maintenance, 5. Family Situation, 6. Taxes, 7. Asset Protection, 8. Later Acquired Assets.

Family Situation

There is really just one family situation for which a revocable trust beats out a will every time, and that is if you are in a second marriage, or a relationship where one or both of the partners have children from previous relationships. If this is your situation, a trust is a better fit. 

In Utah, we have the elective share and the intestate share. These come into play if you have a will (elective share) or do not have a will (intestate share), and you die married to someone who is not  the parent of your children. The elective share and the intestate share are essentially algorithms that say how much the surviving spouse should get. Administering an estate relying on these algorithms  can be messy and a source of contention among family members.

Instead, properly drafted revocable trusts provide for money to be held for the surviving spouse, but also limit the surviving spouse’s control of those assets, ensuring that the children of the deceased spouse receive what’s intended for them want them.

Winner for second marriage with children from prior relationships: Revocable Trust

There are a few additional situations that I want to mention as well, and this category seemed the best place to mention them. 

If you have children with special needs and they are already on some kind of government “needs based” benefit program, or it is likely they will be, then a trust is also going to be your better bet for ensuring that assets are administered in a way that will not jeopardize their benefits. Wills can (and Really Good Wills do) have provisions that plan for this as well, but revocable trusts allow for more nuance in these situations.

Winner for special needs children or spouses: Third Party Supplemental Needs Trust via a Revocable Trust 

If you have children with money management problems (ie addictions, habits, etc.), a testamentary trust that ensures money is safeguarded for them, can be put in a revocable trust or a will.  But generally speaking, this level of custom drafting occurs more often in revocable trusts. 

Winner for Children with poor money management: Revocable Trust 

Winner for all other family situations (particularly in a first marriage where all children are common between you) where the family has an average level of assets: Tie