Out of all the concerns in estate planning, this is the one I hear the most. For some reason the general public is terrified of probate.

The answer is simple: a trust does avoid probate. Keep in mind, your “estate” does not avoid probate, EVERYBODY goes through probate when they die. But the trust instrument will avoid the oversight of a probate court. Probate in MA takes over a year and in CT it takes over 6 months (minimum)

So it’s understandable that one would want their kids to have their money ASAP and “avoid probate”

But here’s what nobody’s telling you: If a trust avoids probate, then… what happens if theres an issue with the trust? EVERY client I’ve ever written a trust for has said the same thing “my kids won’t fight, I have no worries, my kids get along”

Unfortunately, once youre gone and money is on the table, families tend to fight.

So what happens if there’s a fight over the trust? Let’s say the trustee isn’t giving out funds, or a beneficiary thinks they deserve more?

Well, the trust now goes through “Superior Court” where it enters into lengthy and potentially years long litigation being overseen by judges who aren’t experienced in inheritance law. What’s more is your beneficiary will have to retain a litigator which can run them upwards of $10k or more.

So yes, a trust isn’t subject to the oversight of probate court, but rather the superior court where litigation is exponentially more expensive, lengthy, time consuming, and slow.

Now, if you only had a will in probate, your estate will follow the probate trajectory and be over within a year (in CT and assuming there’s no “funny business), or over a year in MA.

Another concern clients have is “what if someone contests my will?”

Unlike a trust, a validly executed and witnessed will is an extremely strong legal document. Trust language is open to interpretation and at the discretion of the trustee to uphold.

A will is clear, concise, gets to the point, and if anyone contests it they’ll likely lose (there is some nuance here too, that’s not guaranteed. Wills created before divorce or before an adopted child may be able to be contested easier.)

So a will offers your assets more protection in the appropriate forum (probate) for an exponentially lower cost.