The Big Probate Secret: What Estate Attorneys Won't Tell You
Mar 17, 2025
When it comes to estate planning, many people assume that setting up a revocable living trust is enough to avoid probate. However, there’s a crucial step that often gets overlooked—funding the trust. In this blog, we’ll break down the key probate secret attorneys don’t always emphasize and explain how you can truly ensure your estate plan works as intended.
The Myth About Revocable Living Trusts
A common misconception is that simply having a revocable living trust will automatically keep your estate out of probate. The reality? A trust only works if assets are properly transferred into it.
Think of a trust like a suitcase—you can have the best, most well-designed suitcase, but if you don’t actually pack your belongings into it, it’s useless when you go on a trip. Likewise, a trust must be properly funded by retitling your assets into the trust’s name.
A Real-Life Example of a Costly Mistake
One case involved a mother who had a revocable living trust. Her daughter was supposed to oversee the details, but when the mother passed away, it turned out that many assets were still titled in her personal name.
Because those assets were not transferred into the trust, they had to go through probate—completely defeating the purpose of setting up the trust in the first place. This process took over a year and cost the family unnecessary time, money, and stress.
The Probate Secret Attorneys Don’t Always Tell You
Many attorneys will set up a revocable living trust, hand their clients a stack of papers, and assume their job is done. Buried somewhere in the paperwork is a note about funding the trust, but often, no additional guidance is provided. The result? Clients think they’re protected, but when the time comes, their assets still end up in probate.
Probate Is Based on Title
The real secret here is probate happens when assets are still titled in the deceased person’s name. If the title remains unchanged, the court must go through a time-consuming and costly process to retitle the assets before they can be distributed to beneficiaries.
How to Ensure Your Trust Actually Works
To avoid probate effectively, you need to take these steps:
- Fund Your Trust
- Retitle bank accounts, investment accounts, real estate, and other assets in the name of the trust.
- Work with a financial advisor or estate planning attorney to verify that everything is correctly transferred.
- Avoid “Duct Tape Solutions”
Many people try to avoid probate by naming beneficiaries on accounts or using joint ownership. While this may seem like a quick fix, it often leads to complications, unintended consequences, and loss of control over assets.
- Review and Maintain Your Trust
- Regularly review your trust to ensure all new assets are properly titled in the trust's name.
- Sign up for newsletters, attend estate planning seminars, and stay informed on changes in probate laws.
The Bottom Line
A revocable living trust is a powerful tool—but only if you use it correctly. The real probate secret isn’t just setting up a trust—it’s ensuring that every relevant asset is properly titled in the trust’s name. Otherwise, your estate plan could fail, leaving your loved ones stuck in probate.
Don’t let your estate plan become an expensive, time-consuming headache. Take the time to fund your trust, avoid quick fixes, and stay proactive in your planning.
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