Make Your Own Living Trust
If you own significant assets and wish to ensure your loved ones continue to receive support after your death, you may want to consider a living trust.
If you own significant assets and wish to ensure your loved ones continue to receive support after your death, you may want to consider a living trust.
A living trust keeps these assets safe until they transfer to your beneficiaries. This overview explains living trusts, how to create them, and why you may want to make a living trust to replace or supplement a last will and testament.
What Is a Living Trust?
A trust is an arrangement where an individual or corporation controls and manages another's assets to benefit the named beneficiaries. The grantor (also called settlor or trustor) sets up the trusts and funds the trust. The trustee manages the trust assets according to the terms of the trust. Several types of trusts hold different types of assets for specific purposes.
A living trust is an estate planning document that designates who receives your assets. It lets you control how your property is handled during your life and after death. It also helps avoid probate and transfers your property quickly and privately. Other names for a living trust include:
- Revocable trust
- Revocable living trust
- Inter-vivos trust
- Irrevocable living trust
A living revocable trust differs from an irrevocable trust in a significant way. No one, not even the successor trustee, can change an irrevocable trust. Other types of trusts, such as a testamentary trust, become effective when you die.
Parties in a Living Trust
There are several parties to a trust, some with overlapping roles. The one who drafts and funds the trust (you) is the grantor. A trustee manages the trust assets. Trustors often act as trustees unless they designate another individual or a trust company (some financial service companies, for example, have trust departments that serve as trustees for clients).
You can also appoint co-trustees or co-grantors. These individuals own and manage the assets with you. If one co-trustee dies, the remaining trustee assumes complete control of the trust. Co-trustees are usually the spouses of trustors. However, you can choose a live-in partner, close friend, or other family member.
A successor trustee manages the trust if you become incapacitated or when you pass away. Even if you appointed a co-trustee, appoint a successor trustee, too. There are events where you and the co-trustee may pass away at the same time. If that happens and you do not have a successor trustee, your estate will go to probate, and the court will appoint an executor to manage it. While the executor will likely honor the wishes outlined in your trust document, the probate process takes more time to complete transfers to your loved ones.
Living Trust Property
You do not need to add all property to a living trust. Items with low value or equity (like cars carrying loans or standard personal belongings) do not need to be trust property.
However, high-value assets should be transferred to the trust. They include:
- Real property and real estate (primary residence, vacation homes, rental units, commercial buildings, and land)
- Financial assets (bank accounts and cash)
- Securities (stocks, bonds, and mutual funds)
- Rare or valuable personal property, including antiques, furs, jewelry, artwork, and collections (e.g., stamps, sports memorabilia)
If you are uncertain of the value of any asset, schedule an appraisal. It is better to determine that an item contains only sentimental value rather than risk the hassle of a dispute with your trust after you die.
How is a Living Trust Different From a Will?
A last will and testament, or will, is a legal document that states how you want assets distributed after you die. It is the primary estate planning document for most people. Wills address:
- Safe deposit boxes
- Real estate
- Personal property
- Preferences regarding your memorial service
- Guardians for any minor children
The will appoints an executor who manages the disposition of your estate and honors your wishes. When you die, the executor submits your will to probate court to start the process. The court acts as an overseer to ensure all transactions are legitimate and debts paid (if those creditors submit proof of claim). These proceedings are part of the public record.
A living trust is a legal document that creates a fiduciary relationship where another party handles property to benefit third parties. As discussed above, the trustor appoints a trustee to manage the property you place into the trust. Beneficiaries may include:
- Your spouse
- Your live-in partner
- Dependent adults
- Anyone who receives your support and care
Unlike a will, property in the living trust passes immediately to your beneficiaries when you die. There is no need to probate a will or undergo the court process.
However, you cannot designate a guardian for minor children or disinherit wayward relatives in a trust. Fortunately, trusts and wills are not mutually exclusive. You can draft a living trust to facilitate the instant transfer of some property while also preparing a will to name guardians, distribute property outside the trust, set up charitable or other types of trusts, and disinherit those who deserve it.
Your executor still needs to initiate probate. Your essential property transfers quicker through the living trust, so those beneficiaries do not have to wait. Then, probate only has to handle the less critical property transfers and finalize guardianships.
Why Have a Trust?
Consider adding a living trust to an estate plan if you face any of the following circumstances:
The Estate Tax and Jobs Act raised the estate tax deduction to $12.92 million in 2023. You do not face federal estate tax unless your estate value exceeds that amount. However, if your assets' value is close to that, expect them to gain value by the time you die and perhaps exceed the deduction. In that case, it is often safer to remove high-value assets into a living trust and avoid estate taxes.
You Want Your Minor Children To Receive an Inheritance
A living trust can hold your minor children's inheritance until they are old enough to manage the property independently. It can distribute payments once a child starts college or reaches a certain age. For example, you can roll the assets into another trust where children receive payments at ages 25, 30, and 35.
You Have Children With Challenges
The trust also controls the distribution if your adult children might waste the money or spend it on their alcohol or drug addiction. You can designate payments if your child starts rehab or remains clean for at least one year.
Trusts also prove useful if you care for adult children with special needs. Some children remain dependent due to mental or physical disabilities. You can roll the assets into a care trust that ensures these individuals continue receiving supervision and medical care.
You Need To Avoid Probate
If you have dependent adult children, a disabled spouse, or any other individual who relies on your support, a living trust allows for speedier distribution to these dependents.
Many people want to avoid a lapse in support because probate courts are slow or a will contest jams up the process. A living trust ensures seamless distribution and prevents possible income loss to your dependents.
You Wish To Keep Money in Your Family
Even well-adjusted adult children make bad decisions regarding partners. Your child can end a marriage or find themselves in an abusive relationship. A trust keeps your assets from passing to that spouse in divorce proceedings. Instead, it remains with your child and grandchildren.
You Are Single With Significant Assets
You may need someone to handle your affairs if you are single and manage real estate, a business, or other significant assets. An accident or illness can leave you incapacitated. In such cases, your affairs either go dormant or you lose income during a challenging and expensive time.
Having a trust keeps your affairs moving forward. It provides support and income while you recover. Your successor trustee acts as a ready agent when you cannot advocate or make decisions for yourself. This situation shows that a living trust is as appropriate for young adults as older and more established individuals.
You Wish to Maintain Privacy
Probate proceedings are public. This means anyone could look up your court file and see your preferences, inventory, and transactions. A living trust is private. No trust information is available to the public. This can only change if there are lawsuits connected to the trust.
Making a Living Trust
Making a living trust requires substantial preparation. Here are your steps to prepare, draft, and finalize your trust.
Living trusts require preparation. Before you draft the documents, complete the following steps:
- List your assets: Start by listing everything you own. Include tangible items like homes, vacation properties, and cars. Don't forget the intangible assets like bank accounts, stocks, bonds, and life insurance policies. When you compile this list, you will better understand what you need to manage. This process also allows you to consider who you want to benefit from the property.
- Find deeds and certificates: Find all the papers that prove ownership. You need deeds or titles to real property and titles for automobiles. For intangible assets, find account information and stock certificates. Place these documents together. This way, they are ready when you transfer property into the trust.
- List beneficiaries: Consider who you wish to support with the trust, including their particular needs. Beneficiaries may include family members, charitable organizations, beloved friends, and anyone you want to receive your property. Remember that retirement benefits and life insurance policies already designate beneficiaries. You may keep these assets out of the living trust or change beneficiaries to be consistent with the living trust.
- Consider trustees: As explained above, the trustee administers the assets in your trust. Generally, you will name yourself as a trustee or name yourself and your spouse as co-trustees. However, even in a committed relationship, you must still appoint a successor trustee. You and your co-trustee could die simultaneously. That individual can be an adult child, a trusted friend, a business partner, or even a bank or trust company.
Once you lay out these details and understand the big picture for your living trust, you can move forward with making a living trust.
Here are the steps in making your living trust:
1. Complete the Trust Document
The document creating the trust is called a declaration of trust. You have two options. You can hire an attorney to draft the living trust. The other option is to purchase a living trust form and complete it.
Once secured, fill in your name and the names of your trustees, successor trustees, and beneficiaries in the sections requiring that information. Use your list of assets to add property descriptions in the trust and indicate who receives what when you pass away. When you finish the trust document, having an estate planning attorney review the form is best. They can ensure it complies with your state's laws and supports your best interests.
2. Sign and Notarize the Trust Document
Most states require your signature and a notary endorsement before your trust is enforceable. You can find a notary public at your bank branch. Some print and mail stores also offer notary services. If you hire an attorney, you will have ready access to a notary. Many attorneys, legal assistants, and paralegals are notary publics as well.
3. Transfer Property Into the Trust
You need to take this step to ensure your trust is effective. Unfortunately, it is also the most time-consuming and detail-oriented step in trust formation. This step is easier if you gather all your titles and certificates first.
When you change ownership, you will switch it from you to yourself as trustee, e.g., from "Anna Smith" to "Anna Smith Revocable Living Trust dated March 1, 2021." Use a quitclaim deed for real estate to create a new deed showing the living trust as the property owner. Limit these transfers to high-value assets like stocks, bonds, homes, and real estate.
Leave automobiles out of your trust unless you want a car to pass to a specific person (or it is a high-value classic car). Ask your broker or agent to assist in the transfers for stocks, bonds, and other brokerage accounts.
4. Transfer Business Interests Into the Trust
If you own a small business, you may consider placing it in the trust so it continues even after your death.
For a sole proprietorship (one-person shop), name the business in the trust and transfer assets like other property types. If you are part of a partnership, you can only transfer your ownership interest in the trust. That transfer requires modifying the partnership agreement, so the trust is the partner, not you. For corporations, you must cancel your original ownership certificate and have your board of directors issue a new one to the trust.
5. Store Your Living Trust Document
Once you complete the living trust document and transfer property, store it securely. It is wise to store the trust document in a fireproof safe at home or a safe deposit box. Keep the certificates and titles (now with the trust as the owner) in the same place. Provide copies of the trust document to other trustees, successor trustees, and beneficiaries.
6. Draft Supplemental Documentation
Even if you draft a living trust, you still need a last will and testament. A will is useful for:
- Transferring property outside the trust
- Handling any excess not addressed in the trust
- Designating a guardian for your minor children
You can find will forms online or ask an estate planning attorney to draft one in addition to the trust. You can also consider other documents for your estate plan. Documents for a comprehensive estate plan include:
An estate planning attorney can provide legal advice about any of the estate planning documents you are considering to meet your goals.
Do You Need an Attorney?
Living trust forms are relatively simple to complete and finalize for some people. You can likely finish the document independently if your property is easily transferable. If you know you can properly transfer the items into the name of the trust without complications, you may be able to complete the process yourself.
However, all legal documents should undergo attorney review in the end. Even if you believe your situation is simple and the living trust covers all aspects, schedule a consultation with an estate planning attorney to read over the living trust document and ensure it is correct and enforceable.
But not all situations lend themselves to a do-it-yourself approach. Consider securing legal advice for your living trust matter at the outset if you face any of the following:
- You own a business or multiple business interests
- You have extenuating issues like intense family conflict or adult children with spending or addiction problems
- You require additional estate planning documents to supplement your trust, like medical care trusts for adult dependents, charitable trusts, or a will to address property or matters not handled by living trusts
- You own real property in multiple states
- You have a chronic or terminal illness that may result in future incapacity
This article provides a solid explanation of making a living trust. However, speaking with a knowledgeable attorney is the best way to ensure your estate planning documents provide for your loved ones and enforce your last wishes. Find an attorney estate planning attorney in your area today.
Can I Solve This on My Own or Do I Need an Attorney?
- Get 10% off your do-it-yourself trust with our affiliate partner Trust & Will
- An attorney is on your side during complicated legal decisions
- Cases with trusts and beneficiaries are rarely cut and dry
- Get tailored advice and ask your legal questions
- Many attorneys offer free consultations