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  • Joel Votolato

Should You Avoid Probate Using A Trust?

Trusts and probate are both legal mechanisms that can be used to manage and distribute assets after a person's death. However, there are some key differences between the two, and each has its own advantages and disadvantages.

Some of the benefits of trusts over probate include:

  1. Avoidance of probate: One of the primary advantages of a trust is that it allows assets to pass to beneficiaries without going through the probate process. This can save time and money and ensure that the assets are distributed according to the wishes of the deceased.

  2. Privacy: Another advantage of a trust is that it can be kept private, whereas probate is a matter of public record. This can be particularly important for individuals who value their privacy or have sensitive assets that they do not want to be publicly disclosed.

  3. Control: A trust allows the creator to have greater control over how their assets are distributed after their death. For example, a trust can be structured to provide for specific beneficiaries, such as minor children or a disabled family member, in a way that probate may not allow.

  4. Flexibility: Trusts can be customized to meet the specific needs and goals of the creator. This can include provisions for charitable giving, asset protection, and tax planning.

  5. Reduced risk of challenge: A trust can be more difficult to challenge than a will or other testamentary document, which can provide greater certainty and security for the creator and their beneficiaries.

In contrast, some of the benefits of probate over trusts include:

  1. Simplicity: Probate is a relatively straightforward process that does not require the same level of legal expertise as creating and managing a trust.

  2. Lower cost: While the cost of probate can vary depending on the size and complexity of the estate, it is generally less expensive than creating and managing a trust.

  3. Court oversight: Probate provides a level of court oversight that can help ensure that the assets are distributed fairly and in accordance with the law.

Ultimately, the choice between a trust and probate will depend on the specific circumstances of the individual and their estate. It is recommended that individuals consult with an experienced estate planning attorney to determine the best course of action for their particular situation.

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