Probate vs. Trust: What’s Best for Your House and Family Legacy?

Discover the key differences between probate and a trust regarding estate planning, real estate, and securing your family’s future.

Deciding whether to use a will that goes through probate or a trust is a very important decision and can have significant legal and financial implications. As the housing market has evolved over the past decade, many people have seen their home equity grow substantially. This makes it all the more important for you to choose the right option for your estate plan. In this article, we will explore the advantages of using a trust over probate when dealing with real estate and how a trust can help preserve your family legacy. 

The Impact of Increased Home Equity on Probate:

As the housing market has rebounded over the past decade, many homeowners have seen their home equity increase dramatically, and it is not uncommon for people to have multiple properties. This growth in equity can have a significant impact on the cost of probate, as attorney fees are often based on a percentage of the estate’s value. With probate costs potentially reaching 2-3% of your estate, it’s worth considering whether a trust might be a more cost-effective solution for your situation.

The Advantages of Using a Trust for Real Estate:

A trust offers several advantages over a will and probate when it comes to dealing with real estate. For one, the administration of your estate can proceed much more quickly, as there is no need to wait for a court appointment. This means for example, that if your mortgage hasn’t been paid, the trustee can step in and sell the house almost immediately, following the specific guidance as outlined in the trust. The trust document will outline the specific terms and conditions governing the trust and its assets, including any real estate owned by the trust.

Trusts as a Means of Preserving Your Family Legacy:

Many people use their trust to create  a lasting family legacy, passing your house and other valuable assets on to their children, grandchildren and sometimes wider family members. 

A trust serves as a powerful tool by allowing you to maintain control over the distribution of your assets, including your home, according to your wishes.The trust document may specify that the property must be held for a certain period of time, or that it cannot be sold without the consent of certain beneficiaries or trustees. Alternatively, the trust document may give the trustee the authority to sell the property, either with or without restrictions.

It is important to note that the specific rules governing the sale of trust property will depend on the terms of the trust document, as well as any applicable state laws.  If you are a trustee, or beneficiary of a trust and are unsure about the rules regarding the sale of trust property, you should consult with a qualified attorney who specializes in trust law for guidance. 

Through a trust, you can provide financial support to future generations, ensuring that your loved ones are taken care of long after you’re gone. By specifying how your assets should be used, such as for education or philanthropy, you can ensure your values are passed on to your descendants. Trusts also offer privacy, ensuring that your family’s financial affairs remain confidential, safeguarding your family’s reputation and legacy. Trusts offer you the ability to plan for your loved ones the way you want, ensuring that your wishes are carried out and your family’s legacy is protected.

Navigating Probate and Trusts in Estate Planning:

Navigating the complexities of estate planning can be a daunting task, which is why it is essential to seek professional advice when weighing your options. An experienced estate planning attorney can provide valuable insights and guidance to help you make the right decision for your unique circumstances. By working with a team of professionals, such as the attorneys at Dempsey, Roberts & Smith, you can create a comprehensive estate plan that addresses your specific needs and safeguards your assets for the future. This not only ensures that your estate plan is legally sound but also provides you with the peace of mind that your family’s future is secure.


Estate planning is crucial to ensure that your assets, including your home, are protected and managed according to your wishes. As the housing market has changed, it’s more important than ever for you to consider the advantages of using a trust over probate for your real estate. Trusts offer greater flexibility, control, and the ability to preserve your family legacy. To make the best decision for your estate plan, consult with an experienced estate planning attorney who can help you navigate the complexities of probate and trusts.

Don’t leave your family’s future to chance. Take control of your estate planning and secure your family’s legacy with the help of the experienced attorneys at Dempsey, Roberts & Smith. To schedule a free consultation, call us today at (702) 388-1216. We are dedicated to helping you make the best decisions for your estate plan and ensuring the protection of your assets and loved ones.