Do I Need an Attorney for My Living Trust? by Brette Sember, J.D.

Do I Need an Attorney for My Living Trust?

Determining if you need an attorney to create a trust is the first question to ask yourself in this process.

by Brette Sember, J.D.
updated December 16, 2020 ·  2min read

 

A living trust is a legal entity that owns property you transfer into it during your lifetime. After your death, the trust distributes the assets to your beneficiaries.

A living trust is created with a trust document or instrument. You may be able to create this yourself, but it makes sense to work with an attorney to create your trust in some situations.

elderly woman and daughter helps on computer

Elements of a Living Trust Document

living trust document must contain the following items to be valid:

  • Your name as the grantor of the trust
  • The name of the trustee who will manage the trust
  • The name of the successor trustee who will manage the trust should the trustee die
  • The names of your beneficiaries
  • How the assets are to be distributed to the beneficiaries

A trust document doesn't need to be filed with the state. As soon as it's completed and executed according to your state laws, it is valid and in effect.

Can You Make Your Own Living Trust?

In many situations, it's possible to prepare your own trust document. To write your own trust document, be sure to do the following:

  • 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.
  • Keep it simple. The more basic your trust, the better. Don't include anything beyond the basic information required by the state.
  • 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 has no effect at all.

When To Use an Attorney

There are various situations in which it makes sense to see a living trust attorney for help with the creation of your trust.

  • Your trust contains conditions. It's not uncommon to include conditions on your trust that control when and how the assets are distributed. For example, a condition could be that your grandchildren must graduate from college to receive their inheritance or that your beneficiaries will inherit portions of the trust at specific ages.
  • You aren't sure what to put in your trust and what to put in your will. Wills and trusts both have advantages and disadvantages. If you aren't sure what's right for you, an estate attorney can explain your options and help you decide what you want to do.
  • You'll owe estate tax. The federal estate tax exemption is currently set at $11.18 million. If your estate is larger than that amount, you'll owe estate taxes. Many states have estate taxes as well, so be sure to check your own state's laws so you know if you'll owe the state. In these situations, you need an attorney to help you review your options and minimize the taxes your estate will owe.
  • You're skipping generations in your bequest. If you want your trust to give assets to grandchildren or other relatives 37.5 years younger than you, this is called generation-skipping. If the transfer is more than $11.4 million per person, it invokes a federal tax called the Generation Skipping Transfer Tax (GSTT). This tax is a flat 40 percent. In this situation, you need to work with an attorney to determine how you can avoid or minimize this extreme tax.
  • One or more of your beneficiaries has special needs or is receiving government assistance. In this situation, there are specific types of trusts you can create to deal with their needs, and a family trust lawyer can help you do so.
  • You have a large amount of life insurance. Life insurance is subject to estate tax. If you have large amounts of life insurance, there's a special trust that can be set up to keep the funds from being hit by estate tax. An attorney can create this special trust for you.
  • You need help transferring assets. If you aren't sure how to legally transfer your assets into the trust, a will and trust attorney can help you do it correctly so that your trust can go into effect.

A living trust is an excellent way to manage your assets during your life and ensure they are distributed to your beneficiaries after your death while avoiding probate and keeping your business private. Ensuring your trust is created and executed correctly will allow you to reap the benefits.

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Brette Sember, J.D.

About the Author

Brette Sember, J.D.

Brette Sember, J.D. practiced law in New York, including divorce, mediation, family law, adoption, probate and estates, … Read more