
It might seem overwhelming to plan for the future, but it’s one of the most generous things you can do for the people you love. When deciding who gets your property after you die, two popular tools are a will and a living trust.
If you ask yourself, “What is a will versus a living trust?” you’re not alone. These words often have different functions, drawbacks, and benefits. Let’s move through them so you can figure out what’s right for you.
By the time you finish reading this article, you will know the difference between a will and a living trust, when each one is made, how it works and if you need one or both.
What Is a Will?

A will, sometimes called a last will and testament, is a legal document explaining what you want done with your things after you die. It’s a road map for your family and the courts to use.
In a will, you can decide:
- Who you want to receive your money, property, or even personal items like your favourite watch or family heirlooms.
- You can select an executor, or the person who will ensure your wishes are implemented.
The difference between a will and a living trust begins here:
A will does not take effect until you die. It doesn’t help you manage your assets while you are alive, and it needs to go through a court process, called probate, to get everything to the right people.
Depending upon where you live, probate can also be a time-consuming and expensive process, but we’ll get to that in a jiffy.
For now, consider a will as your voice from the grave, instructing everyone about what you desire regarding your possessions. It’s relatively simple, but there are limitations, and that’s why some people create a living trust.
What Is a Living Trust?
In contrast, a living trust is a legal structure you create to hold and manage your property during your lifetime.
You put things like:
- Your house, bank accounts, or investments in the trust. Name a trustee (in many cases, yourself) to oversee them.
- You also select a successor trustee to serve if you cannot manage the trust anymore, such as if you fall ill or die.
Here is one of the most important differences between a will and a living trust:
A living trust is active as soon as you create it, while you are still alive, and a living trust, under certain circumstances, can continue to exist after you die.
Unlike a will, a living trust allows you to keep control of your assets while you are alive and helps your loved ones avoid probate after you die.
That makes it a formidable instrument for those concerned about privacy and control over their estate.
Why the Difference Between a Will and a Living Trust Matters

Knowing the difference between a will and a living trust is essential because it can dictate how your assets are managed, how much your family could pay in legal fees, and how soon they can access what you leave them.
Let’s pull the differences between a will and a living trust apart and make it crystal clear.
Key Difference #1: When They Take Effect
A will does not take effect until after you die. It’s a manual for the hereafter of all your stuff. A living trust, by contrast, comes to life as soon as you make the trust and transfer assets into it.
You can use a living trust to transfer your property to your beneficiaries. At the same time, you’re still alive, such as if you are incapacitated and unable to make decisions.
Key Difference #2: Probate
The difference between a will and living trust stands out. A will needs to be probated, meaning a judge will oversee the distribution of your assets.
Probate proceedings in Kenya can take months, even years, and they are public: Anyone can see what you left and who got it. It can be costly, legal fees and court costs can reduce what you leave your family.
A living trust bypasses probate altogether. Because the assets in the trust are no longer considered to be owned by you, all that property passes to your beneficiaries when you die, without a probate court process.
This cuts to the chase, saves money, time, and most importantly, stays private. Many people hope to avoid probate, which is a crucial reason somebody might use a living trust instead of a will.
Key Difference #3: Flexibility and Control
With a will, you control only what happens after you die. A living trust is more flexible, like leaving your kids a certain amount at 25, 30, and so on. This is a boon for those who fear their heirs will be bad stewards of a significant lump sum.
The contrast between a will and a living trust also appears in how they address incapacity. And if you cannot handle things for yourself because of illness or injury, a living trust will allow your successor trustee to take over for you. A will can’t count on that; it’s for after you have died.
Key Difference #4: Privacy
Wills become public documents after they are probated. Anyone can search the publicly available record of what you owned and who you left it to. A living trust, in contrast, is private.
The specifics of your assets and beneficiaries remain between you, your trustee and your heirs. This privacy is a significant lure for those who value discretion.
What Is a Living Will and Trust?

You may have heard the term “living will” and wondered where it fits into the difference between a will and a living trust. Let’s clear that up. A living will is distinct from a living trust and a last will.
A living will is a document that spells out your preferences for life-sustaining medical treatment if you are unable to make decisions for yourself, for example, if you are in a coma. It might say whether you wish to receive life support or specific treatments.
One way to remember the difference between a living will and a living trust is that a living will is focused on you, specifically your health care, while a living trust is designed to protect your stuff.
They have entirely different uses, but both are elements of a sturdy estate plan. On the other hand, a last will is about dispersing what you own after you die.
Distinguishing your living will from your trust enables you to organise your affairs without experiencing confusion.
Can You Have Both a Will and a Living Trust?
One question I hear often: “Can you have both a will and a living trust?” The answer is yes, and it’s frequently a savvy one.
A living trust governs the assets you transfer into it, but you may still have assets that aren’t in the trust, things like your personal effects or property you never got around to transferring. A will can account for those remaining assets, so that nothing is left to chance.
This is known as a “pour-over will.” It’s a safety net, providing that all assets not in your living trust are poured into it after you die.
The difference between a will and a living trust in this scenario is that the trust privately covers most of your estate. Still, the pour-over will must pass through probate for anything not included.
Maintaining both a will and a living trust offers the best of both worlds: the flexibility and privacy of a trust combined with the safety net of a will to snag anything you missed.
Do I Need a Will and a Living Trust?
You are probably asking: “Do I need a will and a living trust?” The response is “it depends.” Here are some things to consider to help you make a decision.
Your Assets
A will may suffice if you have a straightforward estate with only a small number of assets. But if you have assets like property, investments or a business, a living trust can be a way to help your heirs by keeping them out of probate.
Your Family
If you have young children or heirs who may not be good with money, a living trust allows you to dictate how and when they receive their inheritance. A will does not provide that kind of control.
Your Budget
Drafting a living trust costs more than a will upfront, because it involves more legal work, plus transferring assets from one owner to another. But it may save money over the long term in probate costs.
Your Privacy
If maintaining the privacy of your estate is paramount, then a living trust should be your pick.
A living will and trust lawyer can assist you in determining what’s most appropriate for your situation. They will detail the difference between a will and a living trust and walk you through the process.
Living Trust vs. Will: Pros and Cons
Finally, let’s examine what’s good and bad about living trusts vs. wills. This will help define a living trust vs a will and make it easier to decide.
Will Pros
- Cheap and fast to make.
- Includes all assets not held in trust.
- Allows you to name a guardian for minor kids.
- If the estate is straightforward, then yes.
Will Cons
- Passes through probate, which may be time-consuming and expensive.
- Public record, so no privacy.
- Only effective upon death, not incapacity.
Living Trust Pros
- By avoiding probate, you save time and money.
- Confidential: You control as much of your estate as possible.”
- Handles assets while you are alive and after you die.
- Adaptable for managing how assets are allocated.
Living Trust Cons
- More costly and complicated to establish.
- Involves the process of transferring assets to the trust.
- Doesn’t address guardianship of children (you’ll need a will for that).
When considering a living trust vs. a will, your choice should be guided by your priorities: ease, cost, privacy and control.
Getting Started with a Living Will and Trust Attorney
Writing a will or living trust may seem intimidating, but you don’t have to go it alone. A living will and trust attorney can explain how a trust differs from a living will, guide you through establishing a living trust, and prepare a will that ensures everything is taken care of. They’ll ensure that your documents are legally sound and custom-tailored to you.
It begins with locating an attorney who specialises in estate planning. They’ll advise you where to go after asking about your assets, family, and goals.
Estate plans can be as simple as a will or more complex, like a living trust, and whether you opt for the former, the latter or both, professional assistance will help ensure your wishes are crystal clear and your loved ones are protected.
Final Thoughts
The distinction between a will and a living trust isn’t just legal semantics — it’s a question of where you want your legacy to go.
A will is easy, cheap, and plentiful for simple estates, but involves probate and less control; a living trust offers privacy, flexibility, avoids probate, and requires more work to establish.
You, the protective parent, have the power to understand living trust vs will, and a living will for that matter, and to ultimately make the best choice for you and your family.
Will or living trust, or both, the answer is to get going. Speak to a living will and trust attorney, or a lawyer in Kenya to plan, and rest assured, your family will be in good hands.