Is a trust subject to probate?

A Trust is a fiduciary relationship wherein a grantor (trust creator) transfers his assets to a trustee for the benefit of other persons. With the help of a Trust lawyer, a person may choose to make a Trust, rather than a will, to have more control on how his properties will be distributed after his death.

In the above process, the grantor will normally name himself and his family members as trustees. The Trust’s terms can give the trustees the same authority that the grantor has over the assets. Upon the grantor’s death, the properties can be distributed according to the terms in the Trust, even outside Probate proceedings.

Living Trusts, or trusts made by the grantor during his lifetime, are generally not subjects of Probate proceedings. Testamentary Trusts, or those that take effect after the death of the grantor, on the other hand, are subject to Probate. Both Living and Testamentary trusts, when carefully thought and properly written with a  Trust attorney, avoid Probate proceedings.

Probate proceedings can cause undue delays, disintegrate the estate, and make family records available to the public. Living Trusts will not prevent these aggravations, but will also maintain privacy during Trust Administration. Hence, Living Trusts are more often entered into because they are not subject to Probate. They allow the passing on of the grantor’s assets to his heirs and beneficiaries outside of Probate. Irrevocable Living Trusts are also usually created to avoid taxes.

Trustees face the risks of incurring additional expenses and taxes if they are not efficient in performing their Trust duties. Thus, it is advisable for them to consult a  Trust lawyer who will provide them assistance in properly administering a Trust.