How Trusts Help You Avoid Probate
A Will and a Trust are two common ways to determine how your property will be distributed after your death. If you don’t have either, your assets will be distributed according to the State’s law of intestate succession. 84 O.S. § 213. “Intestate” means “without a will.” In other words, the court will decide who inherits your property based on legal guidelines, not your personal wishes.
For example, if a person in Oklahoma passes away and they and their spouse have a child or children, and if that person passes away with no will, then the spouse will receive half and the child or children the other half. If this is not how you would want your assets handled, you need to have a Will or Trust in place.
If a person is passing their estate to their loved ones through a will, or if they have not done their estate planning, the whole matter of the person‘s estate, that is, the property left behind after death, will be decided by a judge, who will follow the terms of the will or the letter of the law. This is a court process commonly known as probate.
Does a Will Avoid Probate?
Many people assume that having a Will means their estate avoids probate, but this is a common misconception. In fact, the word “probate” means “to prove” and originally referred to proving that the Will was authentic. (58 O.S. § 22) A Will must be validated by a judge before any assets can be distributed. Hence, using a Will means you go to court.
When someone passes away with a Will, the court appoints a Personal Representative, either an Executor (named in the Will) or an Administrator (appointed if there is no Will). This person is responsible for gathering assets, paying debts, and distributing the remaining estate according to the Will or state law (58 O.S. §§ 101, 121, 122).
Probate can be time-consuming, costly, and public, as the court oversees the administration of the estate.
How a Trust Avoids Probate
A Revocable Living Trust provides a way to bypass probate entirely. Unlike a Will, a Living Trust is created while you are still alive and remains in effect after your passing (60 O.S. § 175). The key difference is that assets placed in the Trust are legally owned by the Trustee rather than by you as an individual. Since the Trust has a lineup of Trustees and never "dies," there is no need for probate to transfer ownership when you pass away.
By retitling assets in the name of the Trust (a process called “funding” the Trust), ownership automatically transfers upon your death or incapacity to the Successor Trustee you have appointed. This individual can then manage and distribute assets according to your instructions without court involvement.
If a person failed to transfer assets into the Trust during their lifetime, a pour-over Will can be used to move them into the Trust after death. However, this may require a brief probate process.
Additional Benefits of a Living Trust
Privacy Protection – Unlike probate, which is a public process, a Trust keeps your estate matters private. No court filings or public records disclose the details of your assets or beneficiaries.
Control Over Distribution – A Trust allows you to set specific conditions for distributing assets, such as requiring children to reach a certain age or complete school before receiving their inheritance.
Continuity of Management – While you are alive, you serve as the Trustee, maintaining full control of your assets. Upon your passing, the Successor Trustee takes over immediately without court approval.
Flexibility – A Revocable Living Trust can be modified or revoked at any time while you are alive and competent, allowing you to make changes as your circumstances evolve.
Asset Protection – This is a big one. Trusts afford your beneficiaries protection they can’t get anywhere else. Probate in particular gives your beneficiaries (spouse, kids, grandkids, or whoever) notice that they are about to receive money and that creditors can enter the case and take their share. Trusts can prevent that scenario.
Conclusion
While both Wills and Trusts play essential roles in estate planning, a Trust is a desirable option for many because it allows your loved ones to avoid probate, saving them time, money, and unnecessary stress. By setting up and properly funding a Revocable Living Trust, you ensure that your assets are managed smoothly and distributed according to your wishes—without court interference.
At Sullivent Law Firm, our focus is estate planning. If you’re considering a Will or Living Trust, give us a call to schedule a free consultation. We will evaluate your individual situation and help you determine which estate planning documents will best achieve your goals.