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

UPDATED: Oct 1, 2022

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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