As complicated as life can be, reconciling an estate after our death can be a tremendous task for surviving loved ones. Even if a person dies leaving a Last Will and Testament (“Will”) that names an executor to oversee the disposition of an estate, assets that are owned in individual name without a beneficiary designation need to go through a legal process called “probate” which is overseen by a court.  Establishing a living trust during life can help heirs avoid a lengthy and sometimes costly probate process.  Trusts created during life have several advantages, including consolidating and retitling assets during life so everything is under one umbrella (the trust) and then naming individuals to manage both the assets and the plan for distribution after death. Also, while probate details are available to the public and controlled by a court process, a living trust ensures privacy for you and your heirs while ensuring specific estate planning wishes are followed.

A “Revocable Trust” is a planning tool that allows the person creating the trust (the “grantor”) to avoid probate by titling assets in the name of a trustee.  A trustee is the legal owner of all of the trust assets – so on the books, ownership is changing hands. Most individual grantors who create a Revocable Trust also serve as the trustee during life so they continue to manage all their own trust assets. The trust document itself names successor trustees, persons who step in to manage trust assets after the grantor’s death or incapacity. For many, this raises questions: How do the roles of a successor trustee and executor differ? If I name a successor trustee, do I also need an executor?  How do ensure I avoid probate if I create a Trust? Can they be the same person?

We all know at least one story of a family relationship harmed by a contentious inheritance fight after the death of loved one. The general rule of thumb is the more divided a family is before a person’s death, the more difficult the distribution of an estate becomes afterward. Even under the best of circumstances, reconciling an estate after death often is complicated, time consuming, and if an estate goes through a probate process, beneficiaries often experience a delay in accessing an inheritance.

A last will and testament (“Will”) has no meaning until a person dies, and merely directs how assets should be distributed at death. There is a court procedure that oversees the distribution of assets under a Will, to ensure the deceased’s wishes are followed. Not all property goes through a probate process — a probate estate consists of assets owned by the deceased individual in individual, personal name at death, without a beneficiary designation. These assets are subject to the legal (and public) process of a probate, which is a state specific court procedure that oversees the orderly distribution of assets in accordance with a decedent’s wishes. The person entrusted with managing and distributing assets as directed under the Will is the “executor.” Each state’s laws concerning probate are different but there are some similarities. A court supervises the distribution of an individual’s estate, either by following the terms of a validly executed Will or through a legal process for when a person dies without leaving a Will or a trust (known as “intestate”). A probate often is not quick process, as there are court-mandated steps and, depending on the complexity of the estate, it can take up to a year or more.