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Home > Blog > Probate > The Effects And Differences Of Wills And Trusts In The Probate Process

The Effects And Differences Of Wills And Trusts In The Probate Process


When you are creating an estate plan with the goal of avoiding probate and drafting estate documents, you may hear about challenges to wills and trusts. But what is the difference between a will and a trust? They have very different uses, and strengths and weaknesses, and which one you use, can make a big difference in your probate case.

What is a Will?

A will is just a written document that dictates how your property will be disposed of when you are gone. It takes effect immediately when you pass away, and in many cases a probate action must be filed in court, to distribute property in accordance with what is written in the will.

Assuming there are no challenges, the probate administration of the will often goes without problems, although in more complex situations, such as if there are a lot of properties involved, or a business, the probate case can be a bit more involved, as the court will often have to approve of actions necessary to dispose of the property the way the will requires.

Because the will is filed in court, those who may disagree with it may challenge the will, and creditors can make claims on the will.

The Benefits of a Trust

A trust is very different, and can be more flexible than a will. A trust is actually a separate legal entity that you set up. You can transfer property into the trust while you are still alive or the property can transfer into the trust upon your passing. Contrast that to a will, which may exist before you pass, but has no legal effect until you pass.

One benefit of a trust is that you can put conditions on how the property is given to your beneficiaries. For example, in a will, you could say that your home will be the property of whomever you want; when you pass, the ownership of the property immediately passes.

However, in a trust, you could say that someone will be allowed to live in the property for a certain number of years before it is sold. When it is sold, you can condition the payment of the money on whatever conditions you choose.

You can pay money you put into the trust in intervals if you so choose. This is often good when you are concerned that someone may not be responsible to immediately inherit a significant sum of money at one time.

Trusts and Probate

Trusts do not have to be probated, because once you transfer the property into the trust, you no longer own it, so the probate court cannot manage it. This means that there is less of a likelihood of creditors getting to your property, or relatives fighting over what was left to them.

Do you have a probate case, or have questions about how to handle a probate lawsuit? We can help. Contact the Tampa probate lawyers at the Gilbert Garcia Group, P.A.



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