Can you avoid probate by having a living trust? (please also see Do I Need A Living Trust) Well yes and no. Yes, for all the assets that you actually place into the trust you can avoid probate for those particular assets. For example, you could deed your house to the trust. You could create a bank account under the trust’s name and put cash into that account. Same for investment accounts and other financial accounts.

However, no matter how hard you try to get as many of your assets into a trust as you can, it can be very difficult to get all of them in there. In fact, you possibly have or will have assets that you never even knew about. Sometimes these assets can even be worth a lot of money. And when there are assets that are not in your trust and are part of your probate estate, then not having a will becomes a problem.

First of all, it’s usually more time consuming and expensive to take care of probate assets when there isn’t a will. And then on top of that, you have no control over who gets those assets when there isn’t a will. The state uses very strict rules for who gets those assets, and oftentimes that means those assets will go to people you would not have wanted to receive them. This alone can cause a lot of heartache for your family.

So when I create a living trust for a client, even if they are trying to get as many of their assets into the trust as they can, I always strongly suggest they get a will too. It could be something as simple as what’s called a pour over will. A pour over will merely says that all of the probate assets get ‘poured into’ the trust. Easy peasy.

So can you avoid probate by having a living trust? You can definitely try as long as you are willing to put in the work, but it’s always best to always have a will also.