Your Family Shouldn’t Need a Judge’s Permission to Access What You Left Them

A living trust lets your family skip the probate line, keep your finances private, and access what you left them in weeks instead of months. Boroja, Bernier & Associates builds trusts that actually work for Michigan families—and we make sure the critical funding steps get done right.

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What a Living Trust Actually Is—And Why Most Explanations Get It Wrong

Let’s start with what a trust isn’t: it’s not a separate legal entity that “owns” your stuff, despite what you’ve read online.

A trust is a contract. It’s an agreement between you (the grantor), your trustee, and your beneficiaries. Under that agreement, the trustee holds legal title to assets and manages them according to the terms you establish—the rules for investment, the conditions for distribution, the instructions for what happens when you die or become incapacitated.

The contract framework matters because it shapes how trusts actually work. You’re not “transferring assets to the trust” in the sense of giving them to some separate thing. You’re retitling assets so your trustee holds legal title, subject to the rules in your trust document. You’re creating a binding arrangement that governs how those assets are handled.

(Yes, trusts can be treated as separate entities for tax purposes—that’s where the confusion comes from. But at their core, they’re contractual arrangements, and understanding that helps you understand what they can and can’t do.)

Here’s what a properly funded living trust accomplishes: when you die, your family doesn’t wait in line at probate court. They don’t need a judge’s permission to access what you left them. They don’t watch your financial affairs become public record. Your successor trustee steps in, follows your instructions, and distributes assets—often within weeks instead of the seven-month minimum that Michigan probate requires.

Michigan’s Trust Code (MCL 700.7101 et seq.) provides the legal framework that makes these arrangements enforceable. Michigan courts consistently honor properly drafted trusts. But here’s what matters: a trust only avoids probate for assets that are actually funded into it. Assets still titled in your individual name at death? Those go through probate—though they’ll pour into your trust afterward through your pour-over will, so your trust terms still govern their ultimate management and distribution.

That’s why funding matters. Not because an unfunded trust is worthless—it still protects your beneficiaries once assets reach it—but because the whole point of creating a trust is usually to skip the probate step entirely. If assets have to go through probate first, you’ve added time, expense, and court involvement that proper funding would have avoided.

Not sure a trust is right for you? Before you dive into the mechanics, read what a living trust doesn’t do and when a trust makes sense—and when it doesn’t (read further down below). We’d rather you make an informed decision than an expensive one.

Quotable Expert Statement: “A trust that isn’t fully funded isn’t a failure—it’s an incomplete success. Your pour-over will catches anything that didn’t make it into the trust during your lifetime, and once those assets pass through probate into the trust, all your trust protections kick in. But if avoiding probate was the goal, you only achieve it for the assets you actually funded. Hopefully what you missed is small enough for a simplified small estate proceeding. Either way, your beneficiaries still get the protections you planned for them—we just have to take an extra step to get there.”

At Boroja, Bernier & Associates, we handle key funding tasks—like preparing and recording the deed to transfer your real estate—and we provide detailed written instructions for funding the remaining assets yourself. We set you up for success. But following through on those instructions is your responsibility. We’re not going to nag you about whether you called your bank yet. The tools are in your hands.

Estate planning consultations available statewide. Phone, video, or in-person at our Shelby Township headquarters.

How a Living Trust Works—During Your Life and After

Control While You’re Alive, Continuity When You’re Not

The mechanics are simpler than most explanations make them sound.

The players:

• Grantor (that’s you): The person creating the trust and establishing its terms
• Trustee (also you, usually): The person managing trust assets according to those terms
• Successor Trustee: The person who takes over when you can’t—due to incapacity or death
• Beneficiaries: The people who benefit from trust assets—during your lifetime, that’s typically you; after death, it’s whoever you name

While you’re alive and competent: You run everything. You’re both the grantor and the trustee. You buy, sell, invest, spend. You can amend the trust terms whenever you want. You can revoke the whole thing and take your assets back. For practical purposes, nothing changes about how you live—you just have a legal structure in place for when things do change.

If you become incapacitated: Your successor trustee steps in. No guardianship proceeding. No conservatorship hearing. No court involvement at all. Someone you chose, following rules you established, manages your assets without a judge’s permission. Your family handles things privately instead of petitioning a court to declare you incompetent.

This matters more than people expect. The probability of experiencing a period of incapacity before death is significant. Strokes, dementia, accidents—these aren’t rare. A living trust means your family addresses them without lawyers filing petitions and courts appointing guardians.

After your death: Your successor trustee distributes assets according to your instructions. For assets properly held in trust, this happens outside of probate. No court filing. No seven-month minimum waiting period. No public record of what you owned and who got it. Your family accesses what you left them when they need it, not when a judge signs off.

The Actual Benefits—Beyond Just Skipping Probate

What a Living Trust Does for Michigan Families

Probate avoidance gets all the attention, but it’s only part of the story.

Privacy your family deserves: When a will goes through probate, it becomes public record. Your assets, your beneficiaries, your family’s contact information—all available to anyone who looks. We’ve seen grieving families contacted by distant relatives expecting inheritances, creditors of beneficiaries looking for collection opportunities, and outright scammers targeting people identified through probate filings.

Trust terms never get filed with any court. The only people who know what’s in your trust are the people you tell.

Speed when it matters: Michigan probate takes a minimum of seven months—mandatory creditor notice periods that can’t be shortened. That’s for straightforward estates. Complex situations drag on longer. During that time, assets are tied up. Bills pile up. Property sits unmanaged.

A successor trustee can typically begin managing and distributing trust assets within weeks after death, once they have death certificates and complete basic administrative steps. Your family doesn’t wait for court approval to access what you left them.

Avoiding the ancillary probate nightmare: Own property in multiple states? Without a trust, your family faces probate in each state where you own real estate. A vacation home in Florida means Florida probate. A cabin Up North means separate Michigan proceedings if the cabin isn’t in your trust.

A living trust that holds all your real estate—wherever it’s located—means one administration, one process, handled privately.

Incapacity planning built in: A will does literally nothing while you’re alive. It activates at death, period. If you’re alive but incapacitated, a will is useless. Your family ends up in court seeking guardianship or conservatorship.

A living trust includes incapacity planning as a core function. Your successor trustee manages your assets if you can’t. No court. No public declaration of incompetence. No stranger appointed by a judge to control your finances.

Harder to contest: Trusts established during your lifetime, funded over years, and managed openly present fewer opportunities for challenge than wills. A disappointed heir claiming undue influence or lack of capacity faces a tougher argument when the trust has been in operation for a decade and you’ve been actively managing it the whole time.

Protection for beneficiaries: Your trust terms don’t just control who gets what—they control how and when. A beneficiary who’s bad with money can receive distributions over time instead of a lump sum. A beneficiary with creditor problems can be protected through spendthrift provisions. A beneficiary with special needs can receive support without losing government benefits. These protections follow assets into the trust regardless of whether those assets arrived through funding or through probate.

What a Living Trust Doesn’t Do—Straight Talk

We’d Rather You Know the Limits Than Discover Them Later

This is where we differ from firms that sell trusts like they’re magic.

A revocable living trust does NOT protect assets from your creditors. You maintain full control. You can revoke it anytime. Courts treat those assets as available to satisfy your debts because, functionally, they’re still yours. Creditor protection requires irrevocable structures—and giving up control of the protected assets. Different tool, different trade-offs.

A revocable living trust does NOT reduce income taxes. It’s tax-neutral. You report all income on your personal return, same as before. The IRS doesn’t care that assets are held by your trustee instead of you directly. Zero tax benefit.

A revocable living trust does NOT automatically reduce estate taxes. Basic trusts don’t provide estate tax savings. Tax planning trusts exist—they’re different structures designed for specific purposes, and they involve real sacrifices. Don’t let someone sell you a basic living trust by implying it cuts your tax bill.

A revocable living trust does NOT protect assets from nursing home costs. This is the big one. We’ve met families who thought their trust meant Medicaid couldn’t touch their assets. Wrong. A revocable living trust provides zero Medicaid protection. Long-term care planning requires entirely different strategies, different timing, different structures.

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A revocable living trust does NOT eliminate the need for a will. You still need a pour-over will to catch assets that didn’t make it into the trust. You still need a will to name guardians for minor children—trusts can’t do that. The trust is the main vehicle; the will is the safety net.

A revocable living trust does NOT avoid probate for unfunded assets. We’ve covered this, but it bears emphasis: assets titled in your individual name at death go through probate, period. Your pour-over will directs them into your trust, so your trust terms still control their ultimate distribution. But the probate step happens. Funding is what makes probate avoidance work.

We tell clients this upfront because we’ve seen too many families burned by attorneys—or worse, online services—who sold trusts as solutions to problems trusts don’t solve. If a trust isn’t right for your situation, we’ll tell you. We’d rather send you home with a well-drafted will-based plan than take your money for a trust you don’t need.

Funding Your Trust: The Step That Determines Whether Probate Avoidance Actually Works

We’ll Handle the Heavy Lifting—But Some of This Is on You

Creating the trust document takes hours. Funding it properly takes follow-through. This is where the probate avoidance goal either succeeds or falls short.

“Funding” means transferring ownership of assets so your trustee holds legal title—or naming the trust as beneficiary where direct ownership isn’t appropriate. Assets properly funded into your trust pass outside probate. Assets that aren’t funded? They go through probate via your pour-over will, then into your trust for distribution according to your terms.

The trust isn’t wasted if you forget to fund something. Your beneficiaries still get the protections you built into the trust—the asset management rules, the distribution conditions, the spendthrift provisions. We just have to use probate to get those assets into the trust first. Hopefully what you missed is minor—a bank account you forgot about, a vehicle you never retitled—so we can use Michigan’s simplified small estate procedures and keep things quick and inexpensive.

But if probate avoidance was your primary goal, you only achieve it for what you actually fund.

The principle: Every asset you own should either be held by your trustee or have your trust named as beneficiary. Nothing should pass outside your trust’s terms.

What we handle (typically):

Real Estate: We prepare and record the deed transferring ownership to “[Your Name], Trustee of the [Your Name] Living Trust dated [date].” For your primary residence, we typically use an enhanced life estate deed that provides additional protections while accomplishing the transfer. This is done as part of your estate plan—you don’t need to figure it out yourself.

What we give you instructions for:

Bank Accounts: We provide detailed written instructions for retitling accounts to the trust. Most banks have processes for this—some more painful than others. You’re still the signer, still managing the account. The ownership registration changes.

Investment and Brokerage Accounts: Same principle. We tell you exactly what to say and what forms to request. You contact your financial institution to change registration.

Life Insurance: We explain how to name the trust as beneficiary and why it matters—particularly if beneficiaries shouldn’t receive large sums outright (minors, people who struggle with money, beneficiaries with special needs). For larger estates with estate tax concerns, an irrevocable life insurance trust (ILIT) may be more appropriate, but that’s a separate conversation.

Retirement Accounts: Careful here. Naming your trust as beneficiary of an IRA or 401(k) has tax implications. Sometimes it’s the right choice; sometimes it’s not. We’ll discuss this with you and give you specific guidance based on your situation.

Business Interests: LLCs, S-corps, partnership interests—these can transfer to your trust, but operating agreements may need amendment, and there are tax and liability considerations. We’ll advise on approach and coordinate as needed.

Personal Property: A general assignment transfers furniture, jewelry, artwork, vehicles, and similar items without retitling each piece individually. We include this document in your estate plan.

Quotable Expert Statement: “We give you everything you need to fund your trust properly—the deeds are filed, the instructions are clear, the process is explained. What we can’t do is make you pick up the phone and call your bank. That part is on you. Follow through, and your family skips probate entirely. Don’t follow through, and we’ll get your assets into the trust eventually—it’ll just take longer and cost more than it needed to.”

Revocable vs. Irrevocable: Understanding the Trade-Off

Control vs. Protection—You Can’t Fully Have Both

When people say “living trust,” they usually mean revocable living trust. But irrevocable trusts exist, and the distinction matters.

Revocable Living Trust:

• Full control during your lifetime
• Amend, modify, or revoke whenever you want
• Assets remain accessible to your creditors
• No special tax benefits from the structure itself
• Assets count for Medicaid eligibility
• Best for: Probate avoidance, incapacity planning, privacy, control

Irrevocable Trust:

• Cannot easily change or revoke once created
• You give up meaningful control over transferred assets
• Properly structured irrevocable trusts can protect assets from creditors
• Can provide estate tax benefits if designed for that purpose
• May protect assets from nursing home costs (with proper planning and lead time)
• Best for: Asset protection, estate tax planning, Medicaid planning

The key word is “control.” A revocable trust lets you keep it. An irrevocable trust requires you to give it up. That’s not a minor distinction—it’s the fundamental trade-off.

Most Michigan families start with revocable trusts because they want the probate avoidance and incapacity protection without surrendering control. Irrevocable structures become relevant when specific goals—asset protection, tax reduction, Medicaid planning—require them. And those goals require giving up something real.

We don’t let clients stumble into irrevocability without understanding what they’re trading away. “Irrevocable” sounds more serious, more protective. It is—but it means something.

Types of Trusts for Specific Goals

Different Tools for Different Problems

“Trust” isn’t one thing. It’s a category of tools, each designed for specific purposes.

Revocable Living Trust: The foundation of most estate plans. Probate avoidance, incapacity planning, privacy. You maintain control. This is what most people mean by “living trust.”

Irrevocable Life Insurance Trust (ILIT): Removes life insurance proceeds from your taxable estate. You give up ownership of the policy—the trust owns it, pays premiums, and distributes proceeds according to your terms. For larger estates facing potential estate tax, the tax savings justify the loss of control.

Supplemental Needs Trust (Third-Party): Provides for a beneficiary with disabilities without disqualifying them from means-tested benefits like SSI or Medicaid. Assets supplement rather than replace government benefits. Essential planning for families with special needs beneficiaries.

Learn more about Special Needs Planning

Spendthrift Trust: Includes provisions protecting trust assets from a beneficiary’s creditors. If your beneficiary has judgment creditors, a gambling problem, or a spouse who might become an ex-spouse, spendthrift provisions add a layer of protection.

Testamentary Trust: Created through your will rather than during your lifetime. Only comes into existence after death. Goes through probate because it’s part of your will. Useful in some situations, but doesn’t provide the lifetime benefits of a living trust.

Charitable Trust: Various structures exist for those with significant charitable intent. Can provide income streams, tax benefits, and legacy gifts to causes you care about. These are specialized tools requiring specific planning.

We match trust structures to your actual goals—not default to the same document regardless of circumstances.

Michigan Living Trust Questions—Answered Without the Runaround

When a Living Trust Makes Sense—And When It Doesn’t

Not everyone needs a trust. That’s not something every estate planning attorney will tell you, but it’s true.

A living trust probably makes sense if you:

• Own real estate and want your family to avoid probate entirely
• Own property in multiple states and want to avoid ancillary probate in each one
• Value privacy and don’t want your assets and beneficiaries becoming public record
• Want built-in incapacity planning so your family never needs to petition a court for control
• Have beneficiaries who need protection—from creditors, from themselves, from a future divorce
• Have a blended family where clear, private administration matters
• Simply want your family to access what you left them without waiting seven months for court approval

A will-based plan might be enough if you:

• Have a straightforward estate with minimal real estate
• Have beneficiaries who can handle a lump-sum inheritance responsibly
• Don’t have property in multiple states
• Aren’t concerned about privacy
• Have a simple family structure without complications

Here’s what we won’t do: push you toward a trust because it costs more. If your situation calls for a will-based plan, we’ll tell you. If it calls for a trust, we’ll explain why. The goal is the right plan for your life—not the most expensive one we can sell you.

“The families who benefit most from living trusts aren’t necessarily the wealthiest ones. They’re the ones who value privacy, who want to spare their families the probate process, or who have beneficiaries who need structured protection. A teacher with a modest home and a child with special needs might need a trust more than a millionaire with a simple family structure. We figure out what you actually need.”

At Boroja, Bernier & Associates, we help Michigan families determine whether a living trust fits their situation—and if it does, we build one that works. Schedule a consultation to find out where you stand.

Most Law Firms Hand You a Binder. We Hand You a Plan That’s Already Working.

Your real estate deed? Filed before you leave. Your trust document? Drafted for your life, not pulled from a template library. Your questions? Answered by attorneys who actually know your situation, not paralegals reading from a script.

This is what estate planning looks like when the firm gives a damn about the outcome.

We’ve spent this entire page telling you exactly how trusts work, what they don’t do, and where most plans fall apart. That’s not typical. Most firms keep you in the dark because confused clients don’t ask hard questions. We’d rather you understand everything—because informed clients make better decisions, and better decisions lead to plans that actually hold up.

Raise the standard. It’s not just something we say. It’s the difference between a trust that sits in a drawer and a trust that protects your family when it matters.

Schedule a consultation. See what it’s like to work with attorneys who treat your estate plan like it’s worth getting right.

Call Us: (586) 991-7611
Email: admin@bbalawmi.com

Office Hours:
Monday — Thursday: 9:00 AM — 5:00 PM
Friday: 9:00 AM — 3:00 PM
Saturday & Sunday: By Appointment

Estate planning consultations available statewide—by phone, video, or in person at our Shelby Township headquarters.