Do I Need an Attorney for My Living Trust?

You’ve spent your entire life building your wealth, acquiring assets, and securing your family’s future. But have you thought about what will happen to all you’ve worked for after you're deceased? This is where a living trust comes into play.

What to know about a living trust

• Living trust attorneys can help you establish living trusts, avoid probate court, maintain control over assets, ensure wishes are respected, and offer peace of mind.
• Choosing the right successor trustee is vital in a living trust, with options including family, friends, or corporate trustees. A trust lawyer can provide guidance in making this decision.
• Living trusts require proper funding by transferring personal, financial, and real estate assets into the trust’s name, and they offer privacy advantages over wills by keeping estate details out of public probate records.

Exploring the role of a living trust attorney

A living trust is a legal arrangement that offers several advantages:

• It helps ensure that your assets are distributed according to your wishes after your death
• It allows for more privacy because it does not become part of the public record
• It avoids probate for property in the trust in the event of your death 

A living trust attorney can be helpful when you are thinking of setting up a trust. They specialize in the creation and management of living trusts, offering assistance in the proper preparation and funding of the trust. While establishing a DIY living trust is always an option, an attorney’s guidance can help ensure the trust is properly set up and mitigate potential legal complications.

The significance of engaging a living trust lawyer

Engaging a living trust attorney is about more than creating a legal document. It helps ensure that your assets are properly protected and that your wishes are carried out even after you’re gone. A trust attorney can create a legally sound document that aligns with your directives and state laws.

If you have a large and complex mix of assets, have a blended family, or have special needs beneficiaries, you should more strongly consider hiring an attorney.

Selecting the ideal successor trustee with your attorney's help

A crucial aspect of setting up a living trust is choosing a successor trustee. The successor trustee is responsible for managing the trust after your death or incapacitation.

Successor trustees could potentially be your adult children, other relatives, or trusted friends. However, the choice isn’t always limited to individuals; you could also choose a corporate trustee. When choosing a successor trustee, it is important to select someone who is responsible, financially prudent, and capable of making sound decisions when it comes to managing trust property. Your attorney’s expert advice during this process can assist you in making the most suitable decision for your trust.

Structuring your estate: Creating your own living trust

Creating a living trust is a critical step in structuring your estate plan. Creating a living trust can be split into three components:

• Choosing a trust
• Drafting the trust
• Signing and funding the trust

Choosing a trust 

The cost of establishing a living trust can vary greatly based on the complexity of your estate, your geographical location, and legal fees. Your choice of trust type can also influence the overall costs. A simple revocable trust is often the preferred estate planning tool. Some revocable trusts can be more complicated than others and will cost more. On the other hand, irrevocable trusts, which are often set up for tax and/or asset liability protection reasons or provide less flexibility, are typically much more expensive. 

Drafting the trust

You can do this on your own with an online form or service, or your attorney can do this for you. As part of this process you will need to make all of the key decisions such as choosing beneficiaries and a trustee.

Signing and funding your trust

Once you’ve chosen the type of trust you want to set up, the next step is to sign it according to your state’s laws and fund it. Funding a trust involves transferring your assets, such as real estate, financial accounts, and personal property, into the trust’s name.

The process of transferring these assets into your trust varies based on the type of asset. Here are the steps for transferring different types of assets to create a living trust.

1. Real estate: Execute a deed to transfer the title from your name to the trust’s name.
2. Financial accounts: Retitle the accounts in the trust’s name.
3. Personal property: Retitle the property in the trust’s name.

It’s important to remember that your trust only controls the assets that have been transferred into it. Assets that are not transferred into your trust properly can become subject to a probate court even after you die.

Addressing common concerns: Trusts and estate taxes

 

Understanding the tax implications of your trust is a critical aspect of estate planning. Here are some key points to keep in mind:

• The assets held in a revocable trust are subject to estate tax.
• The assets held in an irrevocable trust are generally not subject to estate tax.
• However, simply having a trust doesn’t automatically result in lower estate taxes.
• Estate taxes are applicable if the total estate value exceeds federal or state tax exemptions.

A trust, when structured with suitable terms, can assist in avoiding estate tax liability. If your net worth is close to the federal estate tax exemption limit, consulting an estate planning attorney for potential strategies to avoid estate tax liabilities, including strategies to not owe estate taxes, becomes crucial.

Protecting your family's future: Trusts for minor children and other relatives

Trusts aren’t just for managing your assets; they can also be a powerful tool for protecting your loved ones. Trusts for minor children allow you to protect assets in order to:

• safeguard and oversee their assets until the children reach a certain age
• provide assured funds
• offer flexibility in fund selections
• reduce tax implications
• preserve their inheritance for the future

Trusts can also offer financial security for other relatives, ensuring that they’re taken care of after your passing. From covering educational expenses to providing a steady source of income, a trust can help ensure your family’s financial stability in your absence.

Estate planning beyond borders: Multi-state trust considerations

If you own property or your business interests have assets in multiple states, multi-state trust considerations become crucial. A multi-state trust may be liable for state income taxes in multiple states, depending on whether it meets the criteria for being considered a resident trust in those states.

Navigating the legal frameworks of different states can be challenging, but a living trust attorney can guide you through this process. They can help you with:

• minimizing estate taxes
• avoiding probate in multiple states
• navigating through potential challenges such as exposure to multiple state estate tax regimes and different state laws regarding real estate

Estate planning already poses its own complexities. When multiple states come into play, it is best to seek the advice of an experienced estate attorney or planning attorney.

Keeping your estate plan up-to-date

 

Estate planning isn’t a one-and-done deal. As your life changes, so should your estate plan. Major life events such as:

• marriage
• divorce
• having children
• adoption
• buying or selling property
• a significant change in your health condition

These types of life events should trigger a review of your estate plan, including your revocable living trust.

It’s recommended to review your revocable living trust or trusts at least once a year to ensure that it still reflects your wishes and circumstances. If you opt for a revocable trust and find that it no longer fits your needs, you can modify your revocable living trust. The process of modifying a revocable living trust typically involves:

1. drafting an amendment
2. identifying the desired changes
3. completing the form with the necessary details
4. signing it 

DIY living trusts

If you are concerned about the costs of using an estate planning lawyer to set up your living trust, you can always draft your own trust agreement or use an online service. However, if you take the DIY route, you need to make sure that your new living trust meets the following criteria.

• Check your state laws for trust requirements. Each state has its own requirements regarding what the trust must include, how it should be signed and witnessed, and whether an attorney is required for the transfer of certain assets into the trust.
• Type the document. A handwritten trust document may be valid if it's properly signed and executed, but a typed document will be clear and easy to read and is always best.
• Spell it out clearly. The more specific your trust, the better. 
• Transfer ownership. Once you complete the document, you must transfer ownership of your assets to the trust for it to take effect. If you skip this step, the trust is ineffective.

Although creating a living trust yourself is an option, proceeding without professional advice might not be the best option for a complex estate. A professional trust lawyer can help ensure the validity and proper structure of a living trust document, providing competent representation and advice to their clients. They can help you navigate through various legal complications, emotional distress, and potential financial loss that you might face if you decide to go it alone.

Transitioning trusteeship: What happens when a trustee can no longer serve?

When a trustee is unable to continue serving, and there is no named successor, knowing how to manage the trusteeship transition becomes vital. If the trust doesn’t outline a procedure for replacement, the beneficiaries may need to petition the court. An attorney can assist in this process, interpreting the trust instrument, organizing the trust administration process, and providing advice on the legal criteria and implications of changing trustees.

It’s important to have a plan in place for such scenarios, and working with an attorney can ensure a smooth transition.

Estate planning is a crucial aspect of securing your wealth and protecting your family’s future. Whether it’s choosing between a living trust and a will, selecting the ideal successor trustee, understanding the tax implications, or addressing multi-state trust considerations, each decision plays a key role in how your estate will be managed and distributed after your passing. Remember, it’s not just about making plans; it’s about making the right plans. And with the right guidance from a professional trust and estate lawyer, you can help ensure that your legacy is preserved just as you envisioned.

FAQs

What are the disadvantages of a living trust?

Some of the disadvantages to a living trust include:

1. Costs. Trusts are more expensive to set up than last wills.
2. More paperwork and maintenance. A living trust requires more paperwork than a will and needs regular maintenance to ensure it always meets your needs.

What assets should not be in a trust?

You typically should not put certain assets in a trust, such as retirement accounts, health savings accounts, life insurance policies, UTMA or UGMA accounts, and vehicles. These items are typically excluded from a living trust.

What is a living trust, and why do I need one?

A living trust is a crucial part of estate planning, allowing you to maintain control over your assets during your lifetime and help ensure they're distributed according to your wishes after your death. It helps you avoid the probate process and provides a level of privacy that a will doesn't offer.