That is a great question since wills and trusts are something that people can “do it yourself” or with an affordable legal assist.
Part A of your question: Is a Trust a preferable way to go with my Will? In most scenarios, it’s actually the other way around. People who choose to place their assets into a trust, add a pour-over Will to dispose of any assets left outside the trust, after they pass away.
Part B of your question: Best way to establish a Trust? That depends on you. Will you leave our Covid-19 / BLM challenged panacea owning a string of oil refineries and an airline? Or like most of us do you just have a house, a car or two and a bank or modest brokerage account? If the former, you already have a building full of the finest legal minds just waiting for your direction to draft an award-winning trust. If the latter, you have the choice of creating your own Trust from legal forms that you can purchase online and download to your computer, self-help law books and reasonably priced attorneys who specialize in estate planning. A few words on each of the choices (nothing limits you to just one), then a summary:
Self-hep law books – This is a good starting place to get the big picture. What can a Will do? What does a Trust do? What are the limitations of each and how will that affect me? Legal.com’s bookstore has a selection of self-help guides for people interested in learning more about estate planning. Some of the books even have tear-out forms and/or CDs with forms on them that you can modify on your computer. Most importantly, they explain the differences to you so you can make appropriate, informed choices.
Legal Forms – Here you dive right in to create your Will or Trust. A given form or forms package might or might not offer much in the way of instructions, but they give you a convenient starting point to create and modify a document for your specific needs. Many are specific to your state so feel free to use them with the caveat that you’re in charge of your estate planning strategy. So you may still need to read up on what you want to accomplish before you sit down to modify a generic form. The State Bar of California even publishes a California Statutory Will that you can download for free. Even though it’s from a trusted source, just be aware that it might or might not meet all your specific needs. Additionally, Legal.com has compiled a list of commercial vendors who offer Will and Trust forms.
Attorneys – For the greatest peace of mind, let a pro understand your desires and advise you accordingly. You can refer to Legal.com’s Attorney Directory to find attorneys near you. Search for Estate Planning attorneys in a city near you. If you hire a provider to create a Trust for you, ask whether the fee includes moving your assets that will be placed into the Trust, into the Trust. There are some providers who will charge you to create the document but leave you on your own to move your assets, which can include transferring title to real property into the legal name of your Trust and transferring savings and retirement accounts into the Trust. Just be aware that the bulk of the work lies in the title preparation and recording, and dealing with investment banks to transfer all your accounts. If someone wants a bunch of money to just print out a boilerplate legal form customized with your name on it, and not much else, consider moving on to an attorney or law firm that will be there to assist you in getting everything transferred over. A Trust is no good if there is nothing in it.
You may have access to a legal services plan as a benefit at work. Some legal plans offer Will drafting as a member benefit. LegalShield will draft a member’s Will AND Trust as part of their basic membership benefit. Start your member benefits today by calling Legal.com, Independent Associate, toll-free 800-253-7271.
Summary – Many, if not most people are attracted to Trusts because they “avoid probate.” But just having a trust printed out somewhere doesn’t do this. The Trust actually has to own the bulk of your assets when you die. If all or most of your assets are not in the trust, those assets might still be subject to probate depending on the laws in your state. Finally, probate doesn’t have to be a bad thing. There could be an advantage for your heirs in that a probate proceeding requires any creditors, that you leave behind, to file their claims in your probate case by a certain deadline. If they fail to do so, and many do, then their claims are wiped out like they would be in a bankruptcy. So it’s not uncommon for there to be enough debt relief to cover the probate costs, and the fees charged by an experienced probate attorney don’t have to be overly burdensome in a simple, non-contested case. There is nothing wrong with asking about fees up front, and shopping around.
Standard guidelines apply in this is not legal advice and I am not your lawyer. Still I hope you find that these suggestions and references to resources are helpful to you.
Best, — Dave
Alden Law Group
Bankruptcy and Aviation Law
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