Often people wonder whether you can set up a trust without a lawyer. I am not often asked this question I imagine because most people probably assume that my answer, as an attorney, will be “Absolutely not!” However, that is perhaps not the correct question to ask. The better question is whether you should set up a trust without an attorney?
What are the pitfalls of DIY Trusts?
I have had clients come into my office who have attempted to set up their own trust and became frustrated with the process. Or those who were not sure whether they were doing it correctly. Given the number of do-it-yourself living trust kits that you can purchase online or in a bookstore, it is clear that one may try to draft his or her own living trust. Often such DIY living trust kits do not provide the in-depth instruction necessary to properly create and fund the trust.
For example, I have seen do-it-yourself trusts that fail to provide for a successor trustee or fail to provide for an alternate successor trustee if the one you have named is unable to serve. People using do-it-yourself trust kits commonly create ambiguities in the drafting which makes it difficult, if not impossible, to properly administer the trust without going to court to clear up the ambiguity.
I have even seen a living trust created by an individual without the help of an attorney that failed to dispose of the person’s entire estate. In that case, the individual trying to create his own trust left a specific dollar amount to a particular person, but failed to mention anything about distributing the remainder of his estate. Consequently, the remainder of the trust estate, under Nevada law, passed through probate and was distributed under Nevada’s intestacy laws. The trust failed to achieve one of its main goals, to avoid probate.
What about future trust litigation?
Perhaps when considering whether you should attempt to prepare a living trust by yourself, you should consider that trust litigation attorneys love do-it-yourself living trust kits. The DIY trusts are a great source of controversy that allow estate litigators to cost the trust and its beneficiaries a great deal of time and expense, especially attorney fees, in resolving the problems created by such trusts. By the time trust litigation is over, the cost of having an attorney properly draft the trust in the first place will look minuscule.
If you have set up a living trust by yourself and want to have it reviewed, or if you would rather not set up a living trust by yourself, please contact our office to schedule a free initial consultation to discuss your options.
