Is a Will enough to keep my house out of probate? Or do I need a Trust to keep my house out of probate?

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Is a Will enough to keep my house out of probate? Or do I need a Trust to keep my house out of probate?

I live in Utah, am married with 2 two grown kids. My husband and I don’t have
much as we are both on disablility. We had to use our 401K plans to live on while
we waited for the disablilty to start. We still owe on our house. I was told that
I needed a Trust and a Will or my house would go into probate. I have a will but
it’s not one that a lawyer drew up.

Asked on July 26, 2018 under Estate Planning, Utah

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

A will does NOT avoid probate:  a will MUST be probated to give it affect.
A trust can avoid probate, but a trust brings up other issues or concerns: for example, when you put property or assets into a trust, you make the trust the owner--you no longer own them. The trustee(s) will control what happens to the property/assets, subject to your instructions in the document creating the trust (assuming you can trust them; a fraudulent trustee can do a lot of damage). Whether it is worth giving up ownership and control over your property (e.g. your house) to avoid probate is an open quetion. You should consult with a trusts and estates attorney (one who does estate planning) to undersant what is in your interest.


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