A will doesn't avoid probate; a living trust does, but only for the assets actually in it. A will is the document the probate court reads. In Texas, a will "is not effective to prove title to, or the right to possession of, any property" until it's admitted to probate (Tex. Est. Code § 256.001), and Ohio says no will is "effectual to transfer real or personal property" unless it's admitted to probate or record (Ohio Rev. Code § 2107.61). Assets in a living (revocable) trust are different. The trust already owns them, so they pass under the trust's terms without a probate case.
Living trust vs will at a glance
| Will | Living trust | |
|---|---|---|
| When it takes effect | At death, once a court admits it to probate | When it's signed and assets are transferred into it |
| Who manages the assets after death | Executor appointed by the probate court | Successor trustee named in the trust |
| Court involvement after death | Probate case: filing, letters, creditor notice, accounting | None required for trust assets, though a court can still hear trust disputes |
| What it controls | Everything in the person's name alone that has no beneficiary designation | Only assets titled in the trust |
| Public record | Filed with the court | Generally not filed with a court |
The executor is the person a will names to settle the estate; a court has to appoint them before they can act. The successor trustee is the person the trust names to take over when the person who made it dies, and they can act without a court appointment.
A living will is not a living trust
The names are close, but they do different jobs. A living will is a medical document that states your wishes about end-of-life care. It has nothing to do with property or probate. A living trust holds property and decides who gets it.
What a living trust doesn't cover
A trust only controls assets titled in the trust's name. A house still in the person's own name, or a bank account opened after the trust with no beneficiary, goes through probate even if there's a trust. That's why estate planners pair a trust with a "pour-over" will, a will that sends any stray assets into the trust. That will still has to be probated to move them.
Trusts don't escape the courts entirely, either. Arizona gives the superior court jurisdiction over "trusts" as well as decedents' estates (A.R.S. § 14-1302), so a trustee or beneficiary can still ask a judge to settle a dispute.
Other ways property skips probate
You don't need a trust to keep some assets out of court. Three common tools:
- Beneficiary designations and payable-on-death terms. Texas treats provisions in insurance policies, retirement accounts, bank accounts and trust agreements that name who receives property at death as nontestamentary, meaning they pass outside the will (Tex. Est. Code § 111.052).
- Transfer on death deeds for real estate. Texas (Tex. Est. Code ch. 114) and Ohio (Ohio Rev. Code § 5302.22) both allow them.
- Joint accounts with right of survivorship. In Texas, the surviving owner takes a joint account only if the person who died signed a written survivorship agreement (Tex. Est. Code § 113.151).
Probate and non-probate assets explains how each one works.
Which is better, a will or a living trust?
That depends on the estate, the state and the family, and it's a question for an estate planning attorney. If you're settling an estate rather than planning one, the question is simpler: check how each asset is titled. Assets in the trust go to the successor trustee. Assets with a beneficiary go to that beneficiary. Everything else in the person's name alone is what the probate court handles, and our state probate guides explain what that looks like where you live.
Sorting out what the person left
Whether the estate runs through a trust, a will or both, you start by finding every asset and checking how it's titled. EverSettled helps you build that list so you're ready for an attorney sooner, then guides you through the rest of the admin after a death, from closing accounts to notifying agencies, so the inheritance reaches the family faster.
Frequently asked questions
Does a will have to go through probate?
To transfer property, yes. A will has no legal effect on title until a court admits it to probate (Tex. Est. Code § 256.001; Ohio Rev. Code § 2107.61). Some states have shortcuts, such as probating a will as a muniment of title in Texas, but those still go through the court.
Do I still need a will if I have a trust?
Estate planners usually recommend one, to catch assets that never made it into the trust. That will goes through probate for those assets.
Is a living trust more expensive than a will?
Costs vary by attorney and by how much work it takes to retitle assets into the trust, so ask for a quote. What a trust can save is the probate process after death, for the assets that are actually in it.