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Probate Explained and How Trusts Bypass the Process

Probate Explained and How Trusts Bypass the Process

Estate planning is a topic few love to discuss, but it’s essential for ensuring your assets are distributed according to your wishes after your passing. Central to this process is understanding probate and how trusts play a role in potentially circumventing it. Let’s dive into the details.

What is Probate?

Probate is the legal process by which a deceased person’s estate is properly distributed to heirs and designated beneficiaries and any debt owed to creditors is paid off. For many, it’s a complex, time-consuming, and costly process.

When someone dies with a will (testate), probate ensures the will’s validity and oversees its administration. If someone dies without a will (intestate), probate allocates the assets based on state law.

Challenges with Probate:

  1. Cost: Probate can be expensive, encompassing court fees, attorney fees, executor fees, and other related costs.
  2. Time-Consuming: The process can last several months or even years, especially if there’s a will contest or if the estate is complicated.
  3. Public Record: Probate proceedings are public, which means the value of your assets, the beneficiaries, and other personal information become accessible to anyone.
  4. Potential Conflicts: Without a will, or with ambiguities in a will, family members might contest how assets are distributed, leading to potential conflicts or legal battles.

The Trust Solution: Bypassing Probate

A trust is a legal entity where assets are placed to be managed by a trustee for the beneficiaries’ benefit. Here’s how they can bypass the probate process:

  1. Immediate Transfer of Assets: Unlike assets simply left in a will, assets in a trust are immediately transferred to beneficiaries upon the grantor’s death or as stipulated in the trust’s terms.
  2. Privacy: As trusts aren’t processed through the court system like probate, the details remain private.
  3. Flexibility: Trusts allow for conditions on asset distribution, such as a child only accessing funds at a certain age or for a particular purpose.
  4. Potential Tax Benefits: Certain trusts might offer tax advantages or protection from estate taxes.

Types of Trusts:

  1. Revocable Trust (Living Trust): This trust can be changed, amended, or revoked by the grantor during their lifetime. Upon the grantor’s death, assets in the trust transfer to beneficiaries without going through probate.
  2. Irrevocable Trust: Once assets are placed in this trust, the grantor can’t easily change or remove them. These trusts offer additional benefits, such as protection from creditors and potential tax advantages.


While the probate process serves a purpose in ensuring the proper distribution of assets, many find it beneficial to bypass the process through the strategic use of trusts. If you’re considering setting up a trust, consult with an estate planning attorney to guide you through the intricacies and ensure your assets and beneficiaries are appropriately protected.

Celester Thomas

Company Blog – Soldier to Soldier Hawaii Realty