How Living Trusts Help Avoid Probate

The last thing you want to leave your family is a complicated court process for settling your estate. Probate can mean additional paperwork, expenses, and months of administration at a time when your loved ones are already dealing with your loss. A properly funded living trust can help avoid probate because assets titled in the trust generally pass under the trust’s terms rather than through a probate estate. Your successor trustee can then manage and distribute those assets according to the instructions you established.

At David W. Walker Attorney at Law, I help individuals and families create living trusts based on their assets, family circumstances, and estate-planning goals. Located in Columbia, Missouri, I serve clients in Jefferson City, Fulton, Boonville, and surrounding communities. I can help you determine whether a living trust makes sense for your estate and how it should fit with the rest of your plan.

What Happens During Probate?

Probate is a court-supervised process used to administer a deceased person's estate. Depending on the estate, the process can involve establishing the validity of a will, appointing a personal representative, identifying probate assets, addressing valid debts and claims, and distributing the remaining property to the appropriate beneficiaries or heirs.

Common steps can include:

• Opening the probate estate: The appropriate documents are filed with the probate division, and a personal representative may be appointed to administer the estate.

• Identifying estate property: The personal representative identifies and accounts for assets that are subject to probate.

• Addressing creditors and obligations: Valid claims, expenses, and applicable tax obligations must be handled as part of the estate administration.

• Distributing property: After applicable obligations are satisfied, the remaining probate property can be distributed according to the will, or, if there is no controlling will, under Missouri's intestacy laws.

• Closing the estate: Required final filings and other steps are completed, allowing the probate administration to conclude.

Probate can require significant time and administrative work, and court filings associated with the estate may become public records. Avoiding probate for particular assets can therefore reduce the amount of property that must be administered through the probate proceeding.

A living trust is one way to accomplish that, but only for property properly titled in the trust.

How Does a Living Trust Avoid Probate?

A living trust allows you to place assets into a trust during your lifetime. With a typical revocable living trust, you can retain control of the trust property while you are alive and change or revoke the trust as permitted by its terms and Missouri law.

The important probate distinction is funding. Creating and signing a trust document by itself does not automatically move your property into the trust. Assets that should be governed by the trust generally must be properly titled or otherwise transferred to it.

When you die, assets already held in the trust generally remain under the trust rather than becoming probate assets solely because of your death. The successor trustee can administer those assets according to the trust terms without requiring the same probate process that would apply to individually owned probate property.

This does not mean that a revocable living trust removes the assets from all legal obligations. For example, Missouri law addresses circumstances under which creditors can make claims involving revocable trust property. The Missouri Revised Statutes on creditor claims against a settlor provide additional information about those rules.

A will works differently. Property controlled by a will generally must pass through probate before distribution. A living trust can therefore be particularly useful when avoiding probate is one of your estate-planning goals.

Proper Funding Is Essential

A living trust can avoid probate only for assets that are actually governed by it. This is why funding should be part of the planning process rather than something addressed after the trust document is signed.

Depending on the asset and your estate plan, funding may involve changing the title to real estate, accounts, or other property. Some assets may instead pass outside probate through beneficiary designations, joint ownership, or other arrangements and may not need to be transferred to the trust.

I can help you review how your property is currently owned and determine which assets should be coordinated with your trust. Through my living trusts services, I can also help make sure the trust works with the other parts of your estate plan rather than treating it as a stand-alone document.

That coordination matters because property left outside the trust may still require probate if it lacks another valid method of nonprobate transfer. A pour-over will is also commonly used with a living trust to address property remaining in an individual's name at death, although property passing through the pour-over will generally still goes through probate before reaching the trust.

Which Assets Can a Living Trust Keep Out of Probate?

Probate avoidance is an important reason to consider a living trust, but it is not the only potential benefit. A properly structured trust can also provide a plan for managing trust assets if you become incapacitated and can give you greater control over how and when beneficiaries receive property.

Trust administration can also provide greater privacy than transferring the same property through a probate estate, because it does not automatically require a public probate proceeding. However, disputes or other circumstances can still bring a trust before a court, so a living trust should not be described as guaranteeing complete privacy.

Whether these benefits justify creating a trust depends on your assets, goals, family circumstances, and the other tools already available in your estate plan. A trust is not automatically the best choice for every person.

Avoid Probate With a Living Trust That Works for You

If avoiding probate is important to you, creating the trust is only part of the job. The trust must be properly drafted, the appropriate assets must be coordinated with it, and your estate plan should be reviewed as your property and circumstances change.

At David W. Walker Attorney at Law, I help clients build estate plans designed around what they own and what they want to accomplish. I can help you create and fund a living trust and coordinate it with your will, powers of attorney, and other estate-planning documents.

Located in Columbia, Missouri, I serve clients in Jefferson City, Fulton, Boonville, and surrounding communities. Contact my estate planning firm to schedule a consultation and discuss whether a living trust can help your family avoid unnecessary probate and carry out your goals.