If you own a business, property, or other assets in Southern Utah, you’ve probably heard that trusts help families avoid probate and protect what you’ve built. Many people come to us saying something like, “I think I need a trust.”

Sometimes a lawyer may suggest including a trust inside your will. At first, that sounds like a simple solution. After all, it still uses the word “trust.”

But here’s what most people don’t realize: a trust created inside a will works very differently from a living trust you create during your lifetime. And the difference can significantly affect what your family experiences after you pass away.

Both approaches can help you control how your assets are distributed. But they serve different purposes, and choosing the wrong one can create unnecessary delays, costs, and complications for your loved ones.

In this two-part series, we’ll break down how each option works so you can make an informed decision. In Part 1, we’ll focus on what happens when a trust is created inside your will.

What Happens When You Create a Trust in Your Will

A trust written into your will is called a testamentary trust.

Unlike a living trust, this type of trust does not exist while you’re alive. It only comes into existence after you pass away and after the probate court approves it.

For example, your will might say something like:

“Upon my death, my assets will be held in trust for my children until they reach age 25.”

This type of provision can help control when your children receive their inheritance. However, there’s an important catch.

Your family must go through probate court before the trust can even be created.

Probate is the legal process where the court oversees the distribution of your assets. In Utah, this process can take several months and sometimes much longer, depending on the complexity of the estate.

During this time, many of your assets may be temporarily inaccessible, which can create financial stress for your loved ones.

What Probate Looks Like for Your Family

When someone passes away with only a will, their family typically must go through several steps in probate, including:

  • Filing the will with the probate court

  • The court appointing the executor

  • Notifying heirs and creditors

  • Collecting and valuing all assets

  • Paying debts and taxes

  • Preparing reports for the court

Only after the court approves everything can the remaining assets be distributed into the trust created by the will.

For families already dealing with grief, this process can be overwhelming.

It can also be expensive.

Probate often involves court fees, attorney fees, appraisals, and sometimes accounting costs. These expenses are paid out of the estate, which means less of your hard-earned assets ultimately go to your family.

Another factor many people don’t realize is that probate is a public process. That means anyone can potentially access records about your assets and who inherited them.

Why This Matters for Southern Utah Families and Business Owners

For small business owners, contractors, and property owners in Southern Utah, probate can be especially problematic.

If your estate includes things like:

  • A construction or service business

  • Rental properties

  • Equipment or vehicles

  • Investment accounts

Delays caused by probate can make managing those assets more complicated for your family.

Without immediate authority, your loved ones may struggle to keep things running smoothly while waiting for the court process to unfold.

This is one reason many business owners prefer planning strategies that allow faster transitions and fewer court delays.

The Gap a Will Cannot Solve

There’s another limitation people often overlook.

A will only takes effect after you die.

That means it does nothing to help your family if you become incapacitated during your lifetime.

Most people rely on a Power of Attorney (POA) to allow someone to manage finances if they become unable to do so.

But a Power of Attorney comes with a major limitation:
it automatically ends the moment you die.

At that point, your POA agent no longer has authority, but your executor also doesn’t have authority yet because the court hasn’t appointed them.

The result?

Accounts may be frozen.
Bills may go unpaid.
Your family may have to wait for the court process to move forward.

This creates a gap that can leave loved ones temporarily unable to manage important financial matters.

What Are You Actually Trying to Accomplish?

Before deciding whether to include a trust in your will or create a living trust, it’s important to understand your goals.

Many people simply hear that they “should have a trust,” but the type of trust you choose should depend on what you want it to accomplish.

Some common goals include:

Avoiding Probate

If avoiding probate court is important to you, a testamentary trust will not accomplish that goal. Probate is required before the trust can be created.

Controlling When Beneficiaries Receive Assets

Both testamentary trusts and living trusts can control when children or beneficiaries receive their inheritance. For example, you might delay distributions until certain ages.

Protecting Your Assets During Incapacity

A testamentary trust offers no protection if you become incapacitated, because it does not exist until after death.

A living trust, on the other hand, can allow someone you trust to step in and manage assets if you are unable to do so.

Understanding these priorities helps clarify which approach makes the most sense for your situation.

What We’ll Cover Next

In Part 2, we’ll explore how living trusts work, how they help families avoid probate, and when they may be the better option for protecting your assets and your family.

How We Help You Make the Right Decision

At our firm, we believe estate planning isn’t just about creating documents. The real goal is making sure the plan works for the people you love.

That’s why our Life & Legacy Planning® process starts with education and clarity.

During your Life & Legacy Planning Session, we walk you through:

  • What would actually happen to your family if you passed away

  • What happens if you become incapacitated

  • The real costs and timelines involved

  • Which planning strategies best protect your loved ones

From there, we help you create a plan designed around your family, your assets, and your goals.

If you’d like to get started, schedule a complimentary 15-minute discovery call and we’ll help you take the next step toward protecting everything you’ve built.

This article is a service of Wes Winsor, a Personal Family Lawyer® Firm. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Life & Legacy Planning® Session, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life & Legacy Planning Session.