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21 U. Fla. L. Rev. 44 (1968-1969)
The Revocable Trust: A Means of Avoiding Probate in the Small Estate

handle is hein.journals/uflr21 and id is 62 raw text is: THE REVOCABLE TRUST: A MEANS OF AVOIDING PROBATE IN THE SMALL ESTATE? CHARLES DENT BOSTICK* One of the apparent casualties in the modern quest for speed and efficiency is the usage of the probate court to transmit wealth at death. The inter vivos revocable trust has been suggested as a possible alternative to conven- tional probate court procedures. It is not feasible to consider here all poten- tial applications of such a trust to every type of estate. Estates are too varied in quantity and quality to permit such generalizations in an article of limited scope. There is, then, no satisfactory answer to whether the trust is always a desirable alternative to conventional probate court procedures, but proper consideration can be given to the more manageable question of whether the trust, alone or in combination with other devices, is an appropriate substitute for probate court proceedings in an estate of specified size and quality. This article undertakes to suggest some major shortcomings of contempo- rary probate procedures with particular concern for their impact on the small estate1 and to examine the effectiveness of the revocable trust with the settlor as trustee in circumventing these shortcomings.2 Any evaluation of a scheme designed to avoid the probate court involves an analysis of why one desires to avoid that court as it is now constituted. Probate in the usual sense is the judicial establishment of an instrument as the last will of a competent testator, executed in the manner required by the statute.3 The term can have a broader meaning and as used here refers to all probate court activity from production of the will to discharge of the executor whereby a judicially supervised scheme seeks to give effect to the wishes of the testator. Despite all the dissatisfaction with it and all the attacks mounted against it, probate contains very substantial advantages not lightly cast out in a weighing of the relative value of the revocable trust and other methods. Most important of these advantages, especially when the selection *B.A. 1952, LL.B. 1958, Mercer University; Member of the Georgia Bar; Associate Pro- fessor of Law, University of Florida. 1. The small estate is defined for purposes of this article as a gross estate of less than $60,000, in accordance with the provisions of INT. REv. CODE of 1954, §2052. 2. This consideration is grounded on certain premises about the state of probate ad- ministration today, the nature of the trust device itself, and the nature of limitations on the utilization of the device as a will substitute. These premises are: (1) existing probate administration has become sufficiently burdensome on the small estate to justify serious attempts at will substitutes; (2) the revocable inter vivos trust device itself is unremarkable, except that if utilized as considered here the settlor will always himself be the trustee of the trust; (3) there is no taxation advantage in the use of the revocable trust as a will sub- stitute; (4) the revocable trust is impractical as a will substitute in the small estate if the settlor intends the trust to continue in being beyond his own lifetime, other than for a short period immediately following his death for certain winding up purposes; (5) the use of the trust as a will substitute is impractical if there is any circumstance present re- quiring the appointment of a personal representative for the estate. INT. Rrlv. CODE Of 1954, §2038, provides that reservation by the donor of the right to revoke the trust requires inclusion of the trust property in the gross estate. 3. T. ATIINSON, WILis 480 (2d ed. 1953).

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