Do Wills Go Through Probate but Trusts Don't?

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As per the 2025 Wills Survey conducted by Caring.com, around 24% of Americans claim to have made a will, declining from one-third of those who declared to have it in previous surveys. It was also noted that many adults lack the requisite estate planning documents, such as living trusts. 

In America, wills and trusts are two common estate planning mechanisms that carry out totally different functions when it comes to probate. In probate, a will is scrutinized and the court oversees its validity. The court will see to it that the debts of the decedent are paid and assets distributed.

Meanwhile, a trust, especially a living trust, usually does not require probate since it allows one to transfer assets directly to the beneficiaries without court intervention. This feature is one of the main reasons many people think of employing a trust in their estate plan. By bypassing probate, one saves time, cuts down costs, and provides privacy.

Let’s dig deeper into wills vs trusts and find out which estate planning tool best suits your circumstances.

What Probate Is and Why It Matters

Probate is a court-supervised legal procedure that verifies a deceased person's will, designates an estate administrator, notifies and compensates creditors, and distributes remaining assets to heirs. This process creates public documentation that allows anyone in the court's jurisdiction to view the will with all assets and their distribution details.

Different states establish different probate procedures that determine their respective costs and time requirements. Estate complexity varies between cases and the degree of difficulty in resolving an estate issue affects the timeline of the probate procedure. The simplest estate cases require a minimum of six months to complete, while their maximum duration extends beyond twelve months. 

The process of estate resolution becomes more time-consuming when a person owns properties across multiple states, has business assets, or faces legal disputes. Ancillary probate in case an individual owns property outside their residential state creates an additional financial burden and extends the time requirements.

It may sound simple, but probate can quickly become complicated, time-consuming, and emotionally draining without proper guidance, according to Windermere probate lawyer Cameron White.

A will does not avert probate but instead serves as a guideline for the probate court for the proper distribution of a person's estate according to that will.

How a Revocable Living Trust Avoids Probate

A revocable living trust, which people refer to as an "inter vivos" trust, exists when the grantor establishes it during their lifetime. The grantor transfers assets into the trust by retitling them in the trust's name through a process called funding. The assets in the trust do not require probate since they remain in trust ownership at the moment of death as long as these assets were properly titled and administered.

The successor trustee named in the trust document takes over management and distribution without court-supervised probate according to the Uniform Trust Code framework, which exists in states that have adopted it.

The key condition is proper funding. Creating a trust document without transferring assets into it does not avoid probate. Real estate must be conveyed to the trust by a new deed. Bank and investment accounts must be retitled in the trust's name through the financial institutions that hold them. Business interests require assignment documents. 

The funding gap represents one of the most frequent reasons trust-based estate plans fail. A trust grantor creates an estate portion that becomes subject to probate if they transfer partial assets to the trust but do not include new assets acquired after the trust was created.

Pour-Over Wills and Why Trusts Still Need Them

Trusts require a separate document called a pour-over will to operate effectively. A pour-over will directs that any assets held in the grantor's individual name at death be transferred into the trust through the probate process. The Uniform Testamentary Additions to Trusts Act provides a mechanism that most states have adopted. This mechanism safeguards unused assets from intestate succession laws and prevents them from being lost beyond the estate plan. 

The portfolio itself goes through probate for the assets it captures. The included assets remain subject to the time and cost of probate before they reach the trust. The pour-over mechanism operates as a backup system that protects an entire trust-based system.

Through their capability to appoint guardians for minor children, pour-over wills provide a service which trusts are unable to deliver. Most state statutes require guardianship designations to be established through a will, which means that people need to create a will as an important document that accompanies their trust-based estate planning system.

Revocable vs. Irrevocable Trusts

Revocable trusts and irrevocable trusts serve separate functions for distinct circumstances. The grantor of a revocable living trust maintains the ability to change or cancel the trust throughout their entire lifetime. 

The grantor starts as the first trustee who maintains complete authority over all trust assets. All assets in a revocable trust stay in the grantor's taxable estate since the grantor maintains asset control according to Internal Revenue Code rules. Keep in mind that creditors can access them. 

The assets in a revocable trust remain unprotected from creditors and the trust itself fails to provide estate tax relief. The main advantages of this system allow people to bypass probate while their assets will continue to be managed by trusted individuals during times when they cannot handle their affairs.

People who create an irrevocable trust lose all rights to change or terminate the trust agreement until all beneficiaries provide their approval. The grantor loses authority over the assets that they transfer to the trust. This outcome leads to potential estate tax exclusions based on the trust design according to Internal Revenue Code regulations and state-specific asset protection rules. 

People use irrevocable trusts for three main purposes: estate tax management, protection of assets, and charitable donations. 

Testamentary Trusts

A testamentary trust establishes itself through the will's provisions, which take effect only after the grantor's passing. The trust operates as a permanent entity after the grantor dies. A testamentary trust only becomes operational after probate. Probate is necessary before any assets can be placed in the trust.

Parents looking to extend a trust for their underage children use testamentary trusts to guarantee the proper management and distribution of assets until the minors come of age. The probate court recognizes the will and trustees carry out the last will's directions by managing the trust assets presented in the testamentary trust.

Whether a testamentary trust requires continued supervision by the court is determined by the legal structure of the state. This dependence on state legislation imposes limitations on privacy and autonomy, unlike a revocable living trust, in which such limitations do not exist.

Assets That Avoid Probate Without a Trust

Other assets, apart from probate, will be transferred regardless of whether the owner has a trust or a will. In the event of the death of an owner, the interest of that owner passes to the surviving owner(s) as joint tenants with the right of survivorship.

Life insurance benefits, assets in retirement accounts, or an account payable on death or transfer on death are automatically dispensed among certain beneficiaries by the operation of federal or state law. This action can proceed without any need for court proceedings for probate.

Under the current laws, assets passing according to their beneficiary designations always override a will or trust. In certain cases, like when a retirement account designates an ex-spouse as the beneficiary, assets can be transferred against a grantor's current wishes regardless of the terms that a will or trust specified.