Is a Living Trust Liable or Subject to Probate?

By Regan Rondinelli-Haberek

A living trust holds assets that are managed by a trustee for intended beneficiaries. Also called a revocable trust, it differs from other trusts in that the trust creator, or grantor, can also serve as the trustee and can make changes to, or even revoke, the trust in its entirety during his lifetime. Living trusts are attractive because the grantor retains ultimate control over his assets while he is alive, but they are most commonly used to avoid probate.

A living trust holds assets that are managed by a trustee for intended beneficiaries. Also called a revocable trust, it differs from other trusts in that the trust creator, or grantor, can also serve as the trustee and can make changes to, or even revoke, the trust in its entirety during his lifetime. Living trusts are attractive because the grantor retains ultimate control over his assets while he is alive, but they are most commonly used to avoid probate.

How Living Trusts Avoid Probate

When a grantor creates a living trust, he funds the trust by titling assets to the trust. For example, if the grantor chooses to put his home in the trust, he must change the deed so that the trust is the named owner of the property. The same is true of bank accounts and other financial accounts, as well as titles to vehicles. Because the trust owns the property rather than the grantor, upon his death, the trust assets pass according to the terms of the trust, and probate is unnecessary. Trust funding is imperative because assets not titled to the trust may have to go through probate.

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Pour-Over Wills

Either intentionally or unintentionally, a grantor may leave assets out of the trust. A pour-over will is often used in conjunction with a living trust, so that any assets left out of the trust “pour over” from the probate estate into the trust. In this case, the will must be probated so that probate assets can be titled to the trust upon the grantor’s death.

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How Does a Living Trust Protect Assets?

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Can a Deceased Person's Estate Give Property Under a Trust?

Normally, trusts are used to keep property out of an estate. Having property included in probate delays its distribution to the heirs and beneficiaries of a decedent. Placing property in trust prior to a person’s death keeps it out of this probate process. However, a person may decide to have property placed in a trust after his death for other reasons. In such a case, a deceased person’s estate may give property under a trust.

A Living Trust Explained

A living trust is a legal device that establishes how your property is to be transferred upon death, but goes into effect during your lifetime. The grantor, who puts his property into the trust, assigns a trustee to administer the trust on behalf of a beneficiary. There are several types of living trusts. In comparison, a testamentary trust is created by the terms of a will and does not go into effect until death. Living trusts avoid probate but testamentary trusts do not.

Can a Revocable Trust Be Changed With a Will?

A revocable trust, or living trust, is an estate planning device that allows you to manage your property while you are alive and after your death. It is effective immediately after you execute it, and you can amend the trust during your lifetime. However, it becomes irrevocable at death. Although a will can add additional assets to the trust, it cannot dispose of the assets already in the trust or alter any trust provisions.

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