DIY Will ????

[gayl]

I don't have a will. Okay flame on. After helping my brother be executor on my parent's estate (actually I did it all just telling him where to send docuforms), I think I know all the pitfalls. My parents estate attorney made a number of mistakes that I finally got Wells Fargo to help me straighten out.

So here's what I did: I put POD / TOD on all accounts excluding them from probate. I put my house in a trust with equal division between my two children. If I was to do this today instead of 2012, I would put that with a TOD cause but it's fine. I mean I really should get around to it but its transferable as is.

Then I keep everything else under California's small estate affidavit limit of 150K. My kids are very different in their likes and dislikes. I honestly don't envision any trouble at the very end. My siblings and I had no problem

[PatrickA5]

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Originally Posted by workburnout A trust would solve the pool boy problem for you! I read a book recently called "Beyond the Grave" which details situations exactly as you described - where having a trust would have prevented that. It gave me huge peace of mind to get a trust done. A lot of lawyers will try to get you to pay for a will along with the trust, but if you tell them you want the trust only then you can do the will yourself. Then you tie the trust to the will called a pourover trust - it is easy to do. If you ever change the will, you can do that yourself without modifying the trust.

I've read Beyond the Grave and probably a half dozen more books on Wills and Trusts. I feel like I'm ready for the Bar exam. But, still undecided.

[catman2020]

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Originally Posted by CaliKid Get a living trust to avoid probate. Plus, you can leave your assets in trust to give your kid protection of a continuing trust even with him as the trustee. Talk to an attorney. It's a gift to your kid.

+1

DW and I are in year two of resolving three people’s estates (her aunt and mother and my father). The difference between dealing with a living trust and a will can be huge. Give a gift to your kids of a living will. It’s really not anymore difficult to set up a trust and can be very simply designed if you want. The execution, however, is night and day.

[PatrickA5]

Quote:

Originally Posted by catman2020 +1 DW and I are in year two of resolving three people’s estates (her aunt and mother and my father). The difference between dealing with a living trust and a will can be huge. Give a gift to your kids of a living will. It’s really not anymore difficult to set up a trust and can be very simply designed if you want. The execution, however, is night and day.

Can you give a little more information on why the execution was so much better using a Trust? That's the kind of things I'm trying to find out from people that have actually used one vs the other. Thanks.

[catman2020]

Quote:

Originally Posted by PatrickA5 Can you give a little more information on why the execution was so much better using a Trust? That's the kind of things I'm trying to find out from people that have actually used one vs the other. Thanks.

Sure. I’m not an attorney so this is just stories from my experience. I think DIY could probably work but if there is much complexity or size to the estate I personally would probably use an attorney.

Here are some examples. Aunt’s house in a will. Goes through probate (a court supervised process where we have to get an attorney go to the courthouse to do the transfer). Mom’s house in a trust. DW automatically becomes trustee on her mother’s death. Nothing needs to be done (although you need to fund the trust before hand. That is title the house into the trusts name).

Aunt’s financial assets are in a will. Needs to be transferred to an estate account which has to file its own tax return until funds are distributed, which again has to go through a court supervised process. Mom’s assets in a trust. Control transferred to wife by presenting death certificate and trust document to the broker. No legal process needed. No new accounts needed.

These are examples are just from my experience. Maybe someone else had a better experience with probate than we did, but if you read a few articles on he subject in pop finance press I think would mostly support doing a trust.

I noticed someone mention TOD on accounts (transfer on death). We found these to be very helpful and for a small estate this would maybe work instead of a trust and you could probably do a title for the real estate like ‘joint with survivorship’ or something. So you could avoid probate potentially without a trust. But a trust can be a few page document if you have a simple estate.

One last word of advice. Don’t forget to fund the trust which means titling accounts and properties into the trust. My father was active with his finances until his death at 94 and there were a few loose ends that we needed to quickly deal with which would have been easier if they had been put in the trust at first.

[PatrickA5]

Catman2020, thanks, that was helpful.

[Sunset]

Quote:

Originally Posted by catman2020 .... .... I noticed someone mention TOD on accounts (transfer on death). We found these to be very helpful and for a small estate this would maybe work instead of a trust and you could probably do a title for the real estate like ‘joint with survivorship’ or something. So you could avoid probate potentially without a trust. But a trust can be a few page document if you have a simple estate. One last word of advice. Don’t forget to fund the trust which means titling accounts and properties into the trust. My father was active with his finances until his death at 94 and there were a few loose ends that we needed to quickly deal with which would have been easier if they had been put in the trust at first.

I don't know of any asset level limitation on a TOD, so my brokerage account with $100 Million (I wish) should easily transfer upon death.

I could see complex estates couldn't rely on TOD, but 5 accounts regardless of the amount within should be able to use TOD.

Anyone know of a dollar limit on TOD for bank/brokerage accounts ?

[socca]

Quote:

Originally Posted by PatrickA5 I believe even a "pour over" Will as part of a trust has to be probated. At least that's what I've read several times while trying to decide between a Will and a Trust.

I'm not an expert in estate planning, but my understanding is that the 'pour-over' clause in a Will is not a probate-avoidance mechanism. Instead, this clause allows the trustee to dispose of the assets that pass via this clause rather than the executor of the Will. However, in many cases the executor and the trustee are the same person. IIRC, my Nolo estate planning book (which I'm currently re-reading) discourages the use of a pour-over clause in a Will for this reason. This is why it's important for a testator to move all titled assets into the trust after it's created so they aren't part of the probate estate.

FWIW, I'm currently leaning toward doing as much of my estate planning myself as I can, and then see if I'm comfortable with the results or need additional professional help. My estate planning definitely includes creating a revocable trust and moving as much as I can into it to avoid probate.

[gayl]

Quote:

Originally Posted by Sunset I don't know of any asset level limitation on a TOD, so my brokerage account with $100 Million (I wish) should easily transfer upon death. I could see complex estates couldn't rely on TOD, but 5 accounts regardless of the amount within should be able to use TOD. Anyone know of a dollar limit on TOD for bank/brokerage accounts ?

no limit as they are carved out of estate. Has nothing to do with having a final return done, inheritance taxes assessed if necessary, ect. TOD / POD (same as Totten Trusts?) can only cover liquid assets + primary residence in states that permit that (California does)

[CRLLS]

This is a timely discussion for us. We are taking the first few months of '18 to clean up /close up the loose ends on our death papers. We have a will and MPOA from about 30 years ago. We have been directed to Willmaker by a FA (not ours).

We just ordered that software earlier today. I think for a simple will/trust, if the direct heirs are reasonably responsible, then even a poorly written will/trust will work.

Only if there are contests to the documents, will a stronger document package be required. Our hope is that, upon our demise, our 2 sons handle the closure amicably. Of course, if one of them gets their nose out of joint, we won't be around to see it.

[CaliKid]

Quote:

Originally Posted by gayl no limit as they are carved out of estate. Has nothing to do with having a final return done, inheritance taxes assessed if necessary, ect. TOD / POD (same as Totten Trusts?) can only cover liquid assets + primary residence in states that permit that (California does)

Correct but people need to remember the D stands for death. You need to have POAs in place so someone can access your money is you become disabled. How do your bills get paid otherwise if you are disabled? A conservatorship which is a probate during life and much worse than a probate after death (expensive, public and cumbersome).

As for the California transfer on death deeds title companies are not honoring these as people failed to record the warning page with it. Look it up. Title companies (who are above the supreme court in reality) have made people go through probate even though they put transfer on death deeds in place. It's a big mess.

A properly funded living trust avoids all these problems. In a high probate cost state, like Cali, a trust is mandatory for anybody in my opinion. I should add I am an attorney and do not do trusts. I do other facets in the estate world. I am just stating facts to help people.

People can dance around it, try to save money with Nolo (and others), but at the end of the day people should hire an experienced estate attorney to do their trust. I have cleaned up countless DIYer wills after death and it's cost families tens of thousands of dollars because their loved ones tried to "save" a few bucks. People who think they know what they are doing often do not and it's found out after death when it's too late.

[gayl]

Quote:

Originally Posted by CaliKid Correct but people need to remember the D stands for death. You need to have POAs in place so someone can access your money is you become disabled. How do your bills get paid otherwise if you are disabled?

everything is on autopay set to pay in full / deposit in full

Quote:

As for the California transfer on death deeds title companies are not honoring these as people failed to record the warning page with it. Look it up. Title companies (who are above the supreme court in reality) have made people go through probate even though they put transfer on death deeds in place. It's a big mess.

So I was right for not taking it out of the trust (it's the only thing in it). Who'd think I could be right by not doing something!!

[Happyras]

Each state has its own complications. In Washington, we suffer from a very severe estate tax of which the exemption value is not portable from the 1st spouses death. It is a community property state, so a will per say, can be optional for the first spouse, but the estate exemption can only be preserved through a trust structure. If the estate passes to the surviving spouse, the single spouse exemption is all you maintain at death of the second spouse. To avoid this, all community assets of major value are maintained for the trustees benefit within the Trust. I interviewed several so called attorney's, none of which fully understood how to build an estate plan that I considered complete even using their software. My friends who practice law advised their firm provides services for their own estate plans using a software package. I did a trial of Fore! Trust, and estate planning package that is often used by attorney's in several states. I was impressed by the interview process and simple input to create an QTIP trust with a Clayton provision and specific language to the laws of Washington to allow the surviving spouse discretion in funding the ongoing estate trusts, and preserving exemptions to the states limit on taxation of individual assets, as well as the exemption limits for US estate tax. (this is now likely less of an issue). Their is even an IRA trust that can be used to maintain the IRA in trust to avoid earlier distribution and taxation. I believe most on this forum could take the time and model an estate plan using this type of software, and then go in prepared to talk to an attorney to finalize it. For some, it may certainly be worth purchasing to be able to update your plan ongoing.

Nolosoft is very poor for modeling an estate plan, but for a simple Will without Estate tax issues it can address. I use Turbo Tax every year to model my taxes, but it is not good enough. My accountants software generates more eloquent solutions, and Turbo Tax is dead wrong on treatment of Sub S paid Health premiums for example. So beware they make a limited product for the masses, and never an error free product.

[ERD50]

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Originally Posted by OldShooter Actually its situations that involve minor children and special-needs heirs that can be concerning.... Kids: Your daughter inherits, she and her spouse die in a car crash, intestate, leaving two small children. The money may go to his parents as automatic guardians or it may go to a guardian appointed by the state, or ..., or..., or..., depending totally on state law and the decisions of a judge who knows nothing about any of the parties or their wishes. But, hey, those internet wills are easy and cheap. Go for it!

Well, if the daughter inherits, and then she and spouse die, I really don't think my will/trust can do anything at that point? It is/was her money.

But if she dies before inheriting, well, according to my nolo book, it is normally set up that the successor trustees would mange a trust for the surviving children that were named as alternate beneficiaries. It says contact a lawyer if you want someone other than the successor trustees - so they offer options, not trying to 'force' you into one size fits all.

And I looked at the documents I have that were prepared by "pros" - I don't see any difference.

-ERD50

[CoolRich59]

This topic has got me wound up now.

Since I'm still w@rking (), I need to take CLE (continuing legal education) courses to maintain my bar admission. Usually I take course related to my practice area, but we are always encouraged to "broaden" our horizons and that's what I'm going to do.

Hmm, I see there's several courses on estates and trusts in the CLE catalogue. Think I'll check some of those out.

So far, I've signed up for:

• Estate Planning: MCLE BasicsPlus!
• Will & Trust Drafting
• Asset Protection Fundamentals: What Attorneys Should Know to Advise the Moderate Net Worth Clients
• Estate Planning Misfires of the Rich and Famous

[frayne]

But, hey, those internet wills are easy and cheap. Go for it!

It really depends upon the degree of complexity in one's situation. I would say a DIY will is no different than DIY tax returns using internet software. If your case is straightforward why pay a CPA or paid preparer to use essentially the same software to complete your return. Again it isn't a one size fits all and some common sense is warranted.

I want to thank everyone that contributed to this thread as all perspectives are appreciated and I'm sure we have all learned something. The one thing that simply amazes me about this forum is how one post can blossom like a flower with the collective knowledge and experiences of the people who contribute. Again, thanks all, mucho appreciated.

As for my will, I will do it myself using boilerplate language copied and pasted from examples on the internet. My situation is straightforward but as a side note I have a couple of attorney friends I play golf with and will get their input as long as they don't ask for any strokes and count the advice as billable hours !

[sheehs1]

Quote:

Originally Posted by PatrickA5 I believe even a "pour over" Will as part of a trust has to be probated. At least that's what I've read several times while trying to decide between a Will and a Trust.

It's possible every state is different. I had always heard that assets needed to be moved to a trust to avoid probate too. In fact, when I had a lawyer write mine 15 years ago, he attached a dollar bill to initially fund the trust. Also as my Mother's POA, I "moved" most all of her assets to her marital trust before she passed as instructed by her lawyer.

I mentioned the "pour over" because that is how a very expensive estate lawyer (well known and respected in my state) wrote my Dad's will. None of his assets were titled to the trust and the assets did not have to be probated. He was the last to pass. In all cases though (both Mom's and Dads), an accounting was done.

Either the lawyer was right...and in my state it was allowed via this pour over clause or he wasn't worth the money I'm sure he was paid ..which goes back to the point of whether it is worth it or not to hire lawyers for this, if fairly simple. By simple, I mean leaving things to your children or grandchildren that are straightforward, not tied up in trust for 50 plus years, etc. Except I know we did not probate my Dad's assets so the "pour over" clause worked just fine.

[jollystomper]

We will update our will this month, now that all of the kids are legally adults and mostly on their own. We will use the software to generate a will, then use an attorney to review and validate it. It fairly simple - some money set aside for a few special people/charities and the rest divided among the kids - so we are not anticipating any problems.

[ERD50]

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Originally Posted by jollystomper We will update our will this month, now that all of the kids are legally adults and mostly on their own. We will use the software to generate a will, then use an attorney to review and validate it. It fairly simple - some money set aside for a few special people/charities and the rest divided among the kids - so we are not anticipating any problems.

Please report back when you can. I've read that lawyers really don't want to take on a review of someone else's forms (though that's essentially at they are doing with the software they buy).


-ERD50

[sheehs1]

Quote:

Originally Posted by ERD50 Please report back when you can. I've read that lawyers really don't want to take on a review of someone else's forms (though that's essentially at they are doing with the software they buy). -ERD50

Along this same line, I ran into a bit of an issue getting it notarized. Banks here are no longer notarizing wills or trust. Finding a lawyer to notarize something they didn't write was a bit problematic too. But I found one. I suppose one can find any notary to do it. After all, they are just notarizing that it is "you" signing.

You will need witnesses too.