A living trust is an important part of many people's estate plans. Most people create one to save their loved ones the time, expense, and hassle of the probate process. But did you know that you can often create a living trust without an attorney? Explore your options for doing it on your own, and learn when you should seek the help of an attorney.
Many people find that they can successfully set up their own living trust without the help of a lawyer. Making a living trust takes more work than writing a will because a living trust requires that you take the additional step of transferring property into the trust. But like wills, living trusts are often simple documents that do not require a lawyer's blessing.
The main reason to set up a living trust is to avoid probate. Probate is the process that courts use to distribute a deceased person's property. Most people don't need or want their estate to go through probate because it's expensive and time consuming. Property that passes through a living trust does not have to go through probate. Instead, the person named in the trust to be the trustee distributes the deceased person's property without court oversight. For many people with simple estates, this is far better than paying the court thousands of dollars and waiting months or years for the court to make the same distributions.
Keep in mind that not everyone needs a living trust. For example, if you don't own a lot of property or if you plan to leave everything to your spouse, a simple will may serve you better. This is because many states have a quicker and easier probate process for small estates and for transfers to spouses.
In these cases, drafting a living trust and transferring property into the trust maybe more trouble than it's worth.
Making your own living trust does not have to be complicated, though it may take a little work. Find quality self-help materials that will guide you through the process. There are books, software, and online programs that can help. Make sure the tool you use explains the process clearly in plain-English. It should guide you every step of the way. If you use a form from a book or downloaded from the internet, you will need to fill in the blanks and choose which clauses to include. If you use software or an online program, you will go through an interview and the program will assemble the document for you. In either case, the result should be a clear legalese-free document that you understand completely.
Regardless of how you make your living trust, you must finalize it by signing it in front of a notary public and then transferring your property into the trust. A good self-help product will also walk you through these critical steps. If the property isn't properly transferred into the trust, the property will go through probate and it will not be distributed to the beneficiaries named in the trust. Transferring some kinds of property into the trust is easy—you just attach a list of the property to the trust. However, property with title documents—such as real estate—must be retitled in the name of the trust. If you have any questions about this, find a better self-help resource or see an attorney for guidance.
While many people can make a living trust without the help of an attorney, there are some situations require individualized legal advice. For example, don't try to make your own living trust if:
If you do see a lawyer for help, take some time to find one who is an expert in estate planning, will listen to your concerns, and who charges a reasonable fee. To save some money, go to your lawyer with a basic knowledge about how wills and trusts work so that you do not pay your lawyer an hourly fee to teach you the basics.
If you're looking for an estate planning lawyer, you can get started at Nolo's section on working with estate planning and probate lawyers.