DOES A LIVING TRUST PREVENT PROBATE COURT?
If someone has a living trust, does that prevent their family from going to probate court after the person who had the living trust dies? There’s really only one answer to that: A living trust doesn’t always prevent people from going to probate court, and here’s the reason why. You have to think of a living trust as a special vehicle that holds and protects the assets you’ve accumulated during your life. The thing about special vehicles is they must be used for their intended purposes. Imagine you’re a bank, and you buy an armored truck — a Brink’s truck — to carry cash from your bank to another bank. It’s great that you spent $150,000 on this armored truck, and you have an armored guard on the truck. But what if you don’t actually put the cash in the truck, and you just send the truck empty to the other bank? And then you put the cash in your own vehicle, and you drive yourself to the other bank? But what happens if you get in a car wreck or you come under attack and someone steals the money from your personal vehicle? It’s because you didn’t use the Brink’s truck you bought. With a living trust, it’s the same thing. For it to work, you actually have to get your assets into the trust. And for every type of property, there’s a different way to get it into the trust. For example, if you have a house or real estate, you need a deed. You deed that over to the trust. If you have a bank account, you must go to the bank and change the name on the bank account
to the name of your trust, and so forth. In the legal world, the attorneys call that trust funding. If you heard the phrase funding, that’s a technical term used by lawyers to describe the process of getting your stuff into the trust. Sometimes this can be done retroactively after you die. But it’s always better to do it now.
“You definitely want to take necessary actions to put your assets in the trust instead of relying on that will or a probate proceeding, because that adds an extra layer of time, difficulty, and expense.”
I will say that our office does not write trust agreements. We don’t prepare living trusts. We litigate issues that come up when there are problems with the trust. But I will say that a responsible attorney who prepares your trust
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