Rhode Island Wills vs. Trusts
Navigating Rhode Island estate planning doesn’t have to be overwhelming. Whether you’re considering a will or trust, understanding the key differences can save your family significant time, money, and stress. This comprehensive guide breaks down Rhode Island’s unique laws to help you make the right choice for your legacy.
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Rhode Island Will Requirements
A Rhode Island Last Will and Testament should include:
- Age and Capacity: Testator must be “of sane mind” and at least 18 years old
- Format: Must be in writing
- Signature: Must be signed by the testator, or by another person acting at the testator’s express direction while in the testator’s presence
- Witnesses: Must be signed by at least two witnesses who sign while in the testator’s presence after seeing the testator sign or acknowledge the will
Interested Witnesses
Though it is generally preferable for a will’s witnesses to have no interest in the testator’s estate, a Rhode Island will is not invalid solely because a witness has an interest in the will. However:
- Any devise or other beneficial interest in favor of a will’s witness—or in favor of any person claiming an interest through a witness—is “utterly null and void”
- A testator’s creditors are not barred from acting as a witness to the testator’s will
Self-Proved Wills
A Rhode Island will must be proved valid before it can be admitted in probate. Proof of a will can be made through:
- The witnesses’ testimony before the probate court, or
- Notarized affidavits executed by the witnesses
A witness’s affidavit can be executed at any time after execution of the will—including after the testator’s death—and must attest to the facts necessary to establish valid execution of the will. The Rhode Island Legislature publishes a suggested self-proving affidavit form within R.I. Gen. Laws §33-7-26(3).
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Amendment, Revision, and Revocation of Rhode Island Wills
Amending a Rhode Island Will
A testator can amend a Rhode Island will by:
- Executing a later will that supplements but does not revoke the existing will
- Executing a codicil (a written addendum to an existing will)
A supplemental will or codicil must comply with all formalities required for execution of an original will.
Revoking a Rhode Island Will
A testator can revoke a Rhode Island will by:
- Executing a later will, codicil, or other document that expressly revokes the prior will and is executed in compliance with all requirements for an original will
- Burning, tearing, or otherwise destroying the will with the intent of revoking it—or by directing another person to destroy the will while in the testator’s presence
Automatic Revocation by Marriage
A Rhode Island will is revoked by operation of law if the testator gets married after executing the will—unless the will appears to have been made in contemplation of the marriage.
An exception exists: a testator’s exercise of a power of appointment within a will is not revoked if failure of the appointment would result in the relevant property not being transferred to the person who would receive the property if the property was in the testator’s estate and the testator left no will.
Automatic Revocation by Divorce
A testator’s divorce after executing a Rhode Island will automatically revokes any provisions in favor of the former spouse—unless the will appears to have been made in contemplation of the divorce.
All other provisions of the will remain valid and take effect as if the former spouse had predeceased the testator.
After-Born Children
A child born to or adopted by a testator after the testator executes a will is entitled to an interest in the estate as if the testator had died without a will—unless the omission appears to have been intentional and not the result of an accident or mistake.
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Holographic and Oral Wills
Rhode Island does not recognize handwritten (“holographic”) or oral (“nuncupative”) wills except to the extent a holographic or nuncupative will made by a servicemember in actual military service or sailor at sea would be valid to dispose of the testator’s personal assets under common law.
Rhode Island Trust Requirements
Rhode Island’s statutes governing trusts are codified within Title 18 of the Rhode Island General Laws. Rhode Island has not adopted the Uniform Trust Code approach used by the majority of states. Instead, the rules governing Rhode Island trusts are primarily derived from common law and Rhode Island’s relatively unique statutes.
Rhode Island’s trust statutes include default rules but afford settlors significant latitude to override default rules through express provisions in a trust instrument.
Essential Trust Parties
A Rhode Island trust—like trusts in other states—must have three parties:
- Settlor (or grantor): Creates the trust by transferring control of property to the trustee
- Trustee: Holds legal title to the trust property and manages the property for the benefit of one or more named beneficiaries
- Beneficiary: A person designated to enjoy the benefits of trust property without holding legal title
Rhode Island law allows for overlap between a trust’s parties, so one person can be—for example—both settlor and beneficiary. However, a Rhode Island trust’s settlor cannot be the trust’s sole trustee and exclusive beneficiary. If that situation occurs, the trust “merges” and becomes invalid.
Rhode Island law disfavors merger of trusts, and a future or contingent beneficial interest in another person is sufficient to prevent merger of a Rhode Island trust.
Trust Instrument and Funding
Although Rhode Island trusts can also be created by court order or implication, most Rhode Island trusts are evidenced by a signed, written trust instrument that defines the terms of the trust and names a trustee and beneficiaries. A trust instrument creating a Rhode Island trust can define—among many other things—the terms under which the trustee distributes trust assets to beneficiaries.
Distributions may be:
- Discretionary: The trustee has discretion to make distribution decisions in furtherance of the trust’s purposes
- Formula-based: Distributions follow an objective formula or criteria set forth in the trust instrument
A settlor “funds” a trust by formally transferring title to property to the trustee. A settlor transfers Rhode Island real estate to a trust—for example—by recording a deed conveying the property to the trustee and noting the trustee’s capacity as trustee.
When a trust holds Rhode Island real estate, the settlor and/or trustee must execute an affidavit or memorandum of trust—which provide information about the trust’s parties and terms—and record the affidavit or memorandum in the land records of the county where the real estate is situated.
Trustee Powers and Duties
A trustee’s authority to manage trust assets includes the power to:
- Invest, sell, exchange, and lease trust property
- Exercise shareholder rights on behalf of the trust
Trustees are considered fiduciaries and must:
- Administer trust assets in good faith
- Avoid self-dealing
Trustees who invest trust assets are governed by the “prudent investor rule,” under which a trustee must manage assets prudently in consideration of the purposes, terms, distribution requirements, and other circumstances of the trust. A trust instrument may expand, restrict, eliminate, or otherwise alter application of the prudent investor rule to a Rhode Island trustee.
Types of Trusts
Rhode Island trusts can be revocable or irrevocable:
- Revocable Trust: The settlor retains the right to control trust property and to modify or terminate the trust
- Irrevocable Trust: The settlor surrenders the right to modify or revoke the trust
Irrevocable trusts give the settlor less control but sometimes offer tax or other estate-planning advantages revocable trusts do not provide.
Based on when they take effect, trusts can be classified as:
- Living Trust (or inter vivos trust): Created while the settlor is alive
- Testamentary Trust: Created through the settlor’s will—only becoming effective upon death
Revocable trusts are the most commonly used trusts in estate planning. A Rhode Island revocable living trust allows the settlor to retain control of trust property during life and declare how property will be distributed after the settlor’s death—allowing assets to transfer outside probate.
Rhode Island law also recognizes more specialized forms of trusts—such as:
- Charitable trusts
- Charitable remainder trusts
- Medicaid trusts
- Custodial trusts
- Special needs trusts
- Spendthrift trusts
Domestic Asset Protection Trusts
Rhode Island law authorizes domestic asset protection trusts (DAPTs)—a specific form of spendthrift trust that provides exceptionally strong protections against creditor claims.
Assets held in a Rhode Island DAPT cannot be attached to satisfy most types of debts—excluding:
- Alimony
- Child-support
- Personal-injury damages
Rhode Island DAPTs can be “self-settled,” which means the settlor can also be a beneficiary of the trust. A Rhode Island DAPT must be irrevocable, but the settlor can retain certain rights in the trust—including:
- The right to receive distributions from the trust
- The right to veto distributions
- The right to appoint a new trustee
A DAPT must meet precise standards defined in the authorizing statute. A Rhode Island DAPT must have—among other things:
- A trustee resident in Rhode Island
- A trust instrument expressly incorporating Rhode Island law
- A standard for distributions that does not give the settlor an unfettered right to trust principal
Special Considerations
Estate Taxes
Rhode Island does not impose an inheritance tax but is among the minority of states that charge estate taxes to large estates. Rhode Island’s exemption amount—the minimum value before an estate qualifies for the tax—is:
-
- $1,802,431 for deaths occurring in 2025
By comparison, the 2025 federal exemption amount is much higher at $13.99 million. Thus, many Rhode Island estates that do not qualify for federal estate tax must pay Rhode Island’s estate tax.
Rhode Island’s estate-tax rate progresses from 0.8% to 16.0%—though the state’s tax laws include a credit system affecting actual taxes paid.
Small Estates Probate
Rhode Island law includes a streamlined probate process for qualifying small estates:
- Eligibility: A qualifying estate must include no real estate and personal property valued below $15,000—exclusive of tangible personal property
- Process:
- A person with an interest in the estate files a sworn petition with the probate court requesting appointment as a voluntary administrator
- Once appointed, the administrator pays final expenses and other estate debts and then disburses remaining assets to heirs
- Benefit: Small-estates probate allows for probate administration with less formality than ordinary probate
Non-Probate Transfers
Along with living trusts, Rhode Island law offers several other options for transferring assets outside of probate:
TOD Deeds and Vehicle Titles
Rhode Island does not currently allow TOD designations on either real estate deeds or motor vehicle titles. The Uniform Real Property Transfer on Death Act—a model statute authorizing TOD deeds—was introduced in the Rhode Island Legislature in 2021 but has not yet been enacted.
Need help creating the right estate plan for your Rhode Island family?
Our estate planning specialists can help you navigate Rhode Island’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Asset Protection | None | Strong protection with Rhode Island DAPTs |
When It Takes Effect
Wills: After death
Trusts: Can be immediate (living trust) or after death (testamentary trust)
Probate Process
Wills: Requires probate
Trusts: Assets in trust avoid probate
Privacy
Wills: Public record
Trusts: Generally private
Challenges
Wills: Can be challenged in probate court
Trusts: More difficult to challenge
Cost to Create
Wills: Generally less expensive
Trusts: Usually more expensive
Ongoing Administration
Wills: None until death
Trusts: May require ongoing management
Protection During Incapacity
Wills: None (requires separate power of attorney)
Trusts: Can provide management if grantor becomes incapacitated
Asset Protection
Wills: None
Trusts: Strong protection with Rhode Island DAPTs
Conclusion
Creating a will or trust does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)—can add a layer of complexity and result in unforeseen long-term consequences. Whenever any out-of-the-ordinary issues are present, it’s a good idea to consult with an experienced attorney familiar with and licensed under the laws of Rhode Island.
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Frequently Asked Questions
Do I need a lawyer to create a will in Rhode Island?
While Rhode Island law doesn’t require an attorney to create a valid will, consulting with an estate planning lawyer is highly recommended, especially for complex situations. A properly executed will must meet specific requirements, and an attorney can help ensure your will is legally sound and reflects your wishes accurately. Rhode Island has particular rules regarding interested witnesses and proof of wills that can be difficult to navigate without professional guidance.
What happens if I die without a will in Rhode Island?
If you die without a will in Rhode Island (intestate), state laws determine how your assets are distributed. Your surviving spouse would receive a life estate in any real estate you owned, plus a share of your personal property. If you have children, your spouse receives one-half of your personal property, with the remainder going to your children. Without children, your spouse receives $50,000 plus half the remaining personal property, with the balance going to your parents or other relatives according to Rhode Island’s intestacy laws. Additionally, the probate court would appoint an administrator for your estate and guardians for minor children without considering your preferences.
What makes Rhode Island’s Domestic Asset Protection Trusts unique?
Rhode Island is among a small group of states that authorize self-settled Domestic Asset Protection Trusts (DAPTs), which provide extraordinary creditor protection. What makes Rhode Island’s DAPTs particularly valuable is that the settlor can be both the creator and a beneficiary of the trust while still protecting assets from most creditors. This contrasts with traditional trust law where being both settlor and beneficiary typically exposes assets to creditor claims. Rhode Island DAPTs must be irrevocable, but uniquely allow the settlor to retain certain powers like the ability to receive distributions, veto distributions, and appoint new trustees without compromising asset protection. This makes them powerful tools for professionals, business owners, and others with liability concerns.
How does Rhode Island’s estate tax differ from federal estate tax?
Rhode Island’s estate tax has a much lower exemption threshold than the federal estate tax, affecting many more estates. While the federal exemption is $13.99 million in 2025 per person, Rhode Island’s exemption is only $1,802,431 (and adjusts annually for inflation). This means many Rhode Island residents who aren’t concerned about federal estate tax still need to plan for state estate tax. Additionally, Rhode Island’s tax rates range from 0.8% to 16%, compared to the federal flat rate of 40%. However, Rhode Island offers tax credits that can reduce the effective tax rate. This significant difference makes trust planning particularly important for Rhode Island residents with estates exceeding $1.6 million.
What’s unique about Rhode Island’s spousal elective share?
Rhode Island’s spousal elective share is distinctive because it provides a life estate interest in real property rather than outright ownership. If a spouse is omitted from a will or not satisfied with their inheritance, they can elect to receive a life estate in all real estate owned by the deceased spouse (meaning they can use it during their lifetime but don’t own it) plus their intestate share of personal property. This differs significantly from many other states that provide a percentage of the entire estate regardless of property type. Rhode Island’s approach can be particularly important for families where real estate is a significant portion of the estate, as it balances protecting the surviving spouse with preserving property for eventual transfer to other heirs.
Are there restrictions on who can witness a will in Rhode Island?
Rhode Island has an unusual approach to interested witnesses. While many states allow beneficiaries to witness wills with certain limitations, Rhode Island takes a strict stance: any beneficial interest in favor of a witness (or anyone claiming through that witness) is “utterly null and void.” This doesn’t invalidate the entire will, but it does completely eliminate any inheritance the witness would have received. Interestingly, Rhode Island specifically allows a testator’s creditors to serve as witnesses without penalty. This means family members who might inherit under the will should never serve as witnesses in Rhode Island, but business associates or creditors may do so. This is considerably different from many other states that allow interested witnesses to inherit up to what they would receive under intestacy.
Does Rhode Island recognize transfer-on-death deeds?
No, Rhode Island does not currently recognize transfer-on-death (TOD) deeds for real estate. While legislation was introduced in 2021 to adopt the Uniform Real Property Transfer on Death Act, it has not yet been enacted. This means Rhode Island property owners cannot use TOD deeds to transfer real estate outside of probate—a tool available in many other states. Similarly, Rhode Island does not allow TOD designations on vehicle titles. For Rhode Island residents seeking to transfer property without probate, alternative options include creating a revocable living trust, holding property as joint tenants with right of survivorship, or for married couples, using tenancy by the entirety for real estate.
How are trusts taxed in Rhode Island?
Rhode Island trusts face several layers of taxation. For income tax purposes, revocable trusts are generally considered “grantor trusts” with income taxed to the settlor at individual rates. Irrevocable trusts with Rhode Island trustees or administration may be subject to Rhode Island fiduciary income tax on undistributed income. Additionally, assets transferred to irrevocable trusts may trigger gift tax considerations. Most significantly, while assets in a revocable trust are included in the settlor’s estate for Rhode Island estate tax purposes, properly structured irrevocable trusts may remove assets from the taxable estate, which is particularly valuable given Rhode Island’s low estate tax exemption of approximately $1.65 million. This makes irrevocable trust planning an important consideration for many Rhode Island residents with substantial assets.
