When people talk about trusts, there are usually positive things said about it and good connotations to it. By contrast, when people talk about probate, it’s usually not such a great thing. Why is that? If trusts are good and probate is bad, then wouldn’t you want trusts and not probate?
Is Probate Bad?
First, nobody really wants probate. Often, probate is necessary in order to “take care of a person’s affairs” after they die. Probate is the process by which a probate court establishes an executor or administrator to transfer property and money of the deceased to the surviving family or to heirs or to beneficiaries named in a will. So probate is associated with death. To add icing to this probate "cake," the person who needs to deal with probate, as executor or administrator, often is also dealing with the loss of a spouse, relative or friend.
Probate is confusing, frustrating, and slow for the executor/administrator who lacks a probate attorney’s help. Even the word probate sometimes gets confused with probation. None of these things are good. So people associate probate with feelings of confusion, loss, frustration, fear of courts. Even the phrase “avoid probate” is a popular refrain that sometimes is used repeatedly for marketing purposes. So is “probate avoidance” what a person should do?
Are Trusts Good?
When we hear about trusts we often hear about trust money, family trusts, beneficiaries, “trust fund babies," or trusts of wealth. Even the word “trust” is goodly defined as “…reliability, truth, ability, or strength of someone or something…” as a first googled definition result. The search results also show that people are asking trust questions mainly focused on ‘what is a trust?’ and ‘how do trusts work?’ In my professional experience, as a trust and estates attorney, clients are definitely happier signing trust documents in our office, than when signing probate forms at court.
Here's the kicker: A trust can help you avoid probate. But there are many caveats; so we may as well just list a few.
Probate is not needed for everyone. Since probate, if needed, is not needed until after a person dies, getting a trust, at age 45 for example, to avoid probate that could happen 40 years later, could expensively and unnecessarily complicate a middle-aged person‘s estate plan. Most people do not need a trust, especially when a simple will can serve as a person’s main estate planning document. By contrast, a trust to avoid probate for a person in their 80s or 90s totally makes sense as it’s less expensive and less complicated than going through probate.
What's the Bottom Line?
Answering the above questions: Yes, generally people do want trusts and do not want probate. Probate is neither bad nor good, it is just what is needed to be done sometimes. Trusts are definitely the best way to avoid probate. Trusts are not for everyone and buyer beware. Use the services of a reputable, experienced trusts and estates attorney to establish a trust. Your legacy is worth it.