In a Sale
What This Means When the House Is Being Sold
Because this trust does not exist until a will is probated, property intended for it typically has to pass through probate before the trust can even receive it, which is the opposite of the timeline savings a living trust offers. A house may end up briefly held by the estate, then transferred into a newly created testamentary trust once probate concludes, adding a step rather than skipping one.
Where a testamentary trust is meant to hold real property for a minor beneficiary or over a longer term, understanding this sequence, probate first, then trust funding, matters for setting realistic expectations with the family about timing.
Compare
Not to Be Confused With
- This TermTestamentary Trust
- Often Mistaken ForRevocable Living Trust
- Often Mistaken ForIrrevocable Trust
- Often Mistaken ForTrust Funding
What Tells Them Apart
A revocable living trust exists and can hold property during the grantor's lifetime, generally avoiding probate. A testamentary trust does not exist until a will creates it through probate, so it cannot avoid that process the way a living trust can. It becomes a form of irrevocable trust once established, and Trust Funding is the separate step of actually moving assets into it afterward.
Questions
Questions People Ask
Does a testamentary trust avoid probate?
No. A testamentary trust is created by a will and does not exist until that will has been admitted to probate, so the estate generally has to go through probate first before the trust can be funded. This is the opposite of what a living trust is typically used to accomplish.