No one likes to think about what happens to their home after they pass away, but failing to plan can leave families facing chaos. Many assume a will is enough for their estate, yet relying just on a will can lead to probate—a process that is often costly, time-consuming, and emotionally draining.
To help homeowners understand the best way to protect their legacy, we asked real estate expert Tony Reece and estate planning attorney Justin Pratt to share their perspectives.
Q: How does a home held in a living trust simplify or speed up selling or transferring property compared to one that must go through probate?
Tony Reece: It’s a significant benefit. I’ve seen probate situations tear families apart, often causing arguments or confusion over promises made by loved ones. Probate can drag on for months in court, while a trust’s instructions are clear and legally binding as soon as the owner passes, meaning families avoid costly, public disputes and lengthy delays.
Q: Beyond probate avoidance, what are the key financial and legacy planning benefits of having a home in a trust?
Justin Pratt: Trusts offer more than just avoiding probate. They give you control over your assets, including who manages them if you're incapacitated, and can protect your home from your beneficiaries’ creditors, divorce, or poor financial decisions. Trusts also safeguard privacy, since unlike probate, trust documents aren’t public record. Additionally, a well-drafted trust lets you pass on your values and vision to future generations. For estates subject to estate tax (over $15 million for individuals), trusts can offer significant tax savings. For most people, the big benefit is that their beneficiaries receive a stepped-up basis—minimizing capital gains taxes if the home is sold soon after inheritance.
Q: What is the biggest misconception about probate’s time, cost, and complexity?
Tony Reece: Many believe a will settles everything, but a will can be challenged or even deemed invalid, sparking legal battles.
Justin Pratt: The biggest misunderstanding is thinking probate is quick and simple. In reality, it's a court process with numerous requirements—filings, notifications, hearings, and opportunities for litigation. It almost never goes as smoothly as expected. The first step for any homeowner is to inventory their assets—including real estate, accounts, investments, and insurance—then consult an estate planning attorney to create a trust that truly fits their needs.
Q: What’s involved in actually putting your house in a trust, and what mistakes do people make?
Justin Pratt: Creating a trust doesn’t protect your home unless it’s properly “funded.” After establishing the trust, you need to transfer the home’s ownership by executing and recording a new deed—listing the trust's name, date, and the trustee’s capacity—with the proper authority at the county recorder’s office. The most common mistake is failing to record this deed, leaving the home outside the trust and defeating its purpose. Always have an attorney guide or complete this process to be sure your trust is properly funded.
Why a Will Isn’t Always Enough
Tony and Justin agree: wills are frequently contested, dragging families and assets through months or years of court delays and expense. Probate exposes your estate and beneficiaries’ information to the public, while a trust ensures privacy. With a properly funded trust, your home can be transferred or sold almost immediately, without the need for drawn-out court supervision or judicial approval.
Take steps now to secure your home and your family’s future.
- Make an inventory of your assets: List your home and all major accounts.
- Talk to your family: Share your intentions to reduce misunderstandings.
- Consult a professional: Work with an estate attorney to create and fund a living trust, and make sure your property is officially placed in the trust.
We’ve seen cases where a will was created, but the children were placed on title as joint tenants with right of survivorship. The children ended up paying taxes instead of receiving the assets through inheritance.