Probate vs. Revocable Trust

From Our “Ask a Question” Mailbag: “My grandfather died several years ago without a will.  My uncles and aunts fought about who would be in charge of the estate, and it took years to sort it out.  I have heard that you can avoid Probate by using a Revocable Living Trust.  I think this would have been better for my family.  Can you explain Probate vs. Revocable Trust?”

Paige Zirrith, Probate Attorney

Probate vs. Revocable Trust.

Probate describes the legal system that oversees the division of a deceased person’s assets. The system is public. This allows potential creditors and family members access to information to ensure they receive what they are due. If there is no Will, the probate system also determines who inherits the remaining funds after paying debts and taxes. The procedure can be time-consuming, especially if someone dies without a Will. 

A Revocable Trust avoids the probate process. It is private, as, unlike a Will, the Trust is not filed with the Register of Wills or Surrogate. It allows your successor Trustee to access your property using only a death certificate. A death certificate is usually available in less than a week after death.  In comparison, the Register or Surrogate must accept and recognize the filed Will, which will take longer. 

Using a Will vs. Revocable Trust During Your Lifetime

How does Probate vs. Revocable Trust shape up during your lifetime?

If you decide to use a Will, it will have little effect on your life.  Once you sign the document and put it away, it does not affect your day-to-day life and only comes into power when you die.

A Revocable Trust (or “Living Trust”) is created during your life and must be funded by some assets to work. For example, if you have a house, the deed must be moved into the Trust during your life.  If you decide to move your investments into the Trust, the accounts will now be owned by the Trust, not you.  These are not significant changes, but they are unnecessary if you use a Will.

Some people worry that a Revocable Trust requires a tax return.  This is not true. Any account in your Revocable Trust will use your social security number.  Forming a Revocable Trust does not make your income tax filings during your lifetime any more complex.

Probate vs. Revocable Trust at Your Death.

At your death, if you have not used a Revocable Trust, all assets in your name without a beneficiary destination pass through Probate. This process begins with your executor filing a petition with the Register or Surrogate. This petition includes your death certificate and your Will.  The county representative confirms that you have died, that the Will is valid, and that the petitioner is the Executor named in the Will, then issues paperwork to the Executor. This paperwork proves to banks, realtors, and the IRS that the Executor has the authority to take control of your assets.

If you use a Revocable Trust, then at your death, some of these procedures are avoided.  Your successor Trustee takes control by proving you have died using your death certificate.  Nothing needs to be filed with the Register or Surrogate.

In both cases, taxes must be paid, creditors addressed, and the heirs satisfied.  But with a well-drafted and funded Revocable Trust, the person you pick to manage your affairs has less work. Further, they more quickly gain control over your assets.

More Information about Probate vs. Revocable Trust.

This blog is a short discussion about Probate vs. Revocable Trust.  For more information about the Probate Process and Avoiding Probate, follow this link to Revocable Trusts, Everything You Need to Know, or to this site: Probate, Everything You Need to Know.

In Conclusion: Revocable Trust Attorneys and Probate Attorneys, It’s What We Do!

I hope you found this short article helpful.  I have also included some links for more detailed information.  Contact us if you want to know more or have an estate that needs our help.  Let our Probate and Estate Planning lawyers help walk you through what can be a confusing process.  Feel free to contact our office for a free consultation. 

It’s All We Do Wills, Trusts, Probate, and Estate Litigation!