Why Would A Trust Go To Probate?

Why Would A Trust Go To Probate - How Does A Trust Avoid Probate - When Does A Trust Go Through Probate - Putting House In Trust To Avoid Probate

Why would a trust go to probate?

In this article you will learn about:

  • how does a trust avoid probate
  • when does a trust go through probate
  • putting a house in a trust to avoid probate

Let’s dig in.

Table of Contents

The Hive Law Has Been Featured In

Get A FREE Consultation!

We run out of free consultations every month. Sign up to make sure you get your free consultation. (Free $350 value.)

Why Would A Trust Go To Probate?

A trust typically does not go through probate.

One of the primary purposes of creating a trust is to avoid the probate process. 

However, there are some situations in which a trust may become subject to probate:

  • Assets Not Properly Funded into the Trust: For a trust to avoid probate, the trust creator (grantor) must transfer ownership of their assets into the trust during their lifetime. This process is known as “funding” the trust. If certain assets are not properly funded into the trust, they may be subject to probate.
  • Disputes or Controversies: If there are disputes or controversies regarding the validity of the trust, the interpretation of its terms, or the trustee’s actions, interested parties may file legal challenges or petitions with the court. These disputes could lead to probate court involvement.
  • Failure to Administer the Trust: If the trustee fails to administer the trust properly, fulfill their fiduciary duties, or distribute trust assets according to the trust’s terms, beneficiaries or interested parties may seek court intervention, potentially leading to probate proceedings.
  • Lack of a Pour-Over Will: A pour-over will is a legal document that is often created in conjunction with a trust. It directs that any assets not already transferred into the trust during the grantor’s lifetime should be transferred into the trust upon their death. If a pour-over will is not in place, assets that were not properly funded into the trust may be subject to probate.
  • Creditor Claims: In some cases, creditors may file claims against a trust’s assets if they believe the trust holds assets that should be used to satisfy the deceased person’s debts. This could potentially lead to probate court involvement to resolve creditor claims.
  • Disputes over Trustee Appointments: If there are disputes or controversies over the appointment of a trustee or successor trustee, interested parties may seek court intervention to resolve the matter.

Read More: How Much Does An Estate Have To Be Worth To Go To Probate?

How Does A Trust Avoid Probate?

When you create a trust, you transfer ownership of your assets into the trust. 

These assets are no longer considered part of your individual estate.

Instead, they are owned by the trust. 

This is known as “funding” the trust.

Since the trust owns the assets, they are not subject to the probate process upon your death. 

Probate is a court-supervised process that deals with the distribution of assets in a deceased person’s estate. 

Assets held in a properly funded trust are not considered part of your estate and do not go through probate.

Read More: What Happens To A House In A Trust After Death?

When Does A Trust Go Through Probate?

A trust typically does not go through the probate process.

This is because one of the primary purposes of setting up a trust is to avoid probate. 

However, there are certain situations in which trust assets may become subject to probate:

  • Unfunded Assets: If you forget to move all your stuff into the trust before you pass away, those left-out items may have to go through probate.
  • Contested Trust: If people argue about whether your trust is real or not, they might end up in probate court.
  • Lack of a Pour-Over Will: If you don’t have a special will that says any leftovers should go into the trust, those left-out items may have to go through probate.
  • Creditor Claims: If you owe money when you die, the people you owe might ask the probate court to take money from the trust to pay them.
  • Trust Administration Disputes: If the folks in charge of your trust don’t get along or if they disagree with the beneficiaries, they might end up in probate court.
  • Failure to Comply with Legal Requirements: If your trust paperwork or how it’s managed doesn’t follow the law, it might mean a trip to probate court.

Read More: What Assets Cannot Be Placed In A Trust?

Does A Revocable Trust Avoid Probate?

Yes, a revocable trust avoids probate. 

You transfer ownership of your assets into the revocable trust, making the trust the legal owner of those assets.

Because the trust owns the assets, they are not considered part of your estate when you pass away. 

As a result, those assets are not subject to the probate process. 

Instead, the successor trustee can manage and distribute the trust assets according to your instructions in the trust document.

Read More: Don’t Put Your House In A Trust

Does An Irrevocable Trust Avoid Probate?

Yes, an irrevocable trust avoids probate.

When you create and fund an irrevocable trust during your lifetime, you transfer ownership of your assets into the trust. 

These assets are no longer considered part of your individual estate; instead, they are owned by the trust.

Unlike a revocable trust, an irrevocable trust typically relinquishes your control and ownership over the assets once they are transferred into the trust.

Because the trust owns the assets and you no longer control them, they are not considered part of your estate when you pass away. 

As a result, those assets are not subject to the probate process.

Irrevocable trusts can also offer asset protection benefits by shielding assets from creditors and potential legal claims.

This depends on the specific terms and purpose of the trust.

Read More: Why Would Someone Want An Irrevocable Trust

Putting House In Trust To Avoid Probate

Here’s how to put your house into a trust to avoid probate:

  • Select the Type of Trust: Determine which type of trust is suitable for your needs. The two common options for avoiding probate are revocable living trusts and irrevocable trusts. Revocable trusts offer more flexibility, while irrevocable trusts provide additional asset protection but typically have more restrictions.
  • Consult an Attorney: Seek the assistance of an experienced estate planning attorney who can help you create the trust and ensure it complies with state laws. They can also advise you on which type of trust is best for your specific situation.
  • Draft the Trust Document: Work with your trust attorney to draft the trust document. This legal document outlines the terms of the trust, including how your property will be managed and distributed, who the beneficiaries are, and who the trustee will be.
  • Fund the Trust: To avoid probate, you must transfer ownership of your house (and other assets) into the trust. This is known as “funding” the trust.
  • Notify Relevant Parties: Inform your mortgage lender, insurance company, and any other relevant parties about the change in ownership to ensure that the trust is recognized and that there are no issues with your existing agreements.
  • Appoint a Trustee: Designate a trustee who will manage the trust and its assets, including the house, according to the terms of the trust document. You can serve as the initial trustee and name successor trustees to take over when you pass away or become incapacitated.
  • Maintain the Trust: Continue to manage your property and assets as you normally would while holding them in the trust. Keep accurate records of all transactions and changes related to the trust.
  • Review and Update: Periodically review and update your trust and its provisions, especially if there are changes in your life circumstances, beneficiaries, or assets.

Read More: What Are The Disadvantages Of Putting Your House In A Trust?

Set Up A Trust To Avoid Probate

If you want to avoid probate with a trust, fill out the form below. 

At The Hive Law, we understand the importance of:

  • protecting your hard-earned assets 
  • ensuring your family’s future
  • not losing everything to creditors and lawsuits
  • properly (and legally) distributing assets 

We only accommodate a limited number of clients each month.

So don’t miss your opportunity to work with our trust fund lawyers.

Benefits of our trust services:

  • Tailored solutions to fit your unique needs and goals
  • Expert guidance in navigating complex tax and legal matters
  • Preservation of your wealth for future generations
  • Streamlined asset distribution according to your wishes

Avoid the pitfalls of inadequate estate planning strategies:

  • Creditors seizing your assets
  • Lawsuits jeopardizing your family’s financial security
  • Family disputes over inheritance
  • Costly and time-consuming probate processes

Talk soon.

Get A FREE Consultation!

We run out of free consultations every month. Sign up to make sure you get your free consultation. (Free $350 value.)

Share This Post With Someone Who Needs To See It