Probate is the process that is required to have the local Surrogate’s Court “approve” the Will.  It is a minimum of a 9-month process during which the Will must be presented to the Court.  During this process, all legal heirs must be given notice of the Will being presented to the Court and are given a copy of the Will, and are given an opportunity to object to the Will.  After the Will is admitted, the process is far from being completed.  Then begins the mandatory 7-month “administration period” during which debts, claims and liabilities of the estate must be satisfied, taxes must be paid, tax returns must be filed, and sometimes an accounting must be presented to the Court.  In most cases, only after this entire process is complete, will the beneficiaries received any inheritance.

Trusts of the kind discussed in other pages of this website such as the Revocable Living Trust and Medicaid Asset Protection Trust, on the other hand, are self-executing, and without any court involvement, the dictates of the trust are followed by the Trustee.  The net result of this is that the trust estate can be distributed to the beneficiaries in relatively very little time and usually and much less expense.

As noted above, probate also gives the family members (including potentially disinherited heirs) an opportunity and forum to object to the Will.  The trust, on the other hand, can be challenged, but it is more difficult to ascertain the details of the trust in order to have a basis to challenge it, and the court procedures are more involved.

Furthermore, a trust is also private whereas the Will itself and the details of your finances are a public record in the probate of a Will.  The privacy, importantly, also extends to the beneficiaries insofar as non-beneficiaries need not ever see a copy of the trust.  This may be important to some clients who do not want certain beneficiaries to know what others are receiving.