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SHOULD I HAVE A TRUST OR NOT?


After twenty some years as an estate planning and administration attorney, probably the most asked question from a client is whether they need a trust or not. As an attorney this often seems like a loaded question because many people believe an attorney will always tell them they need a trust because the costs of creating a trust usually exceeds the costs of preparing a will. With that said, while there are countless factors that play into the decision making process, below are some factors which I would strongly consider important in such a decision.


The first factor that I consider important in the necessity of a trust is if the client has real estate in multiple estates. The reason is one of the primary purposes of probate is to change title of real estate from a deceased person to a living person. If a client has real estate in multiple states then there will be multiple probates in each state the client owns property.

I have often seen a client have their primary operations in one state, have some type of limited real estate holdings in one or more other states and then have limited real estate they or their spouse inherited in yet another estate. In such cases there will usually need to be a probate for each state in which the client owns real estate.


The second factor that I consider important is if there is some type of potential conflict between the intended beneficiaries. While a trust will not necessarily alleviate all the types of in-fighting between beneficiaries, a properly drafted trust will give the estate some degree of leverage to administer the estate that it would not otherwise have in a probate proceeding.


The third factor I consider important is if the client’s operation is fluid, meaning there are always lots of major decisions to be made. If this is the case, a trust will normally allow for an immediate and ordered means of allowing the estate to continue the on-going business of the client.


Lastly, the other factor I consider is if one or more of the beneficiaries has some type of liability. For example, perhaps the client has a child that is experiencing marital problems, or creditor problems. The trust can take these issues into account and include provisions to protect the beneficiary from a loss. Please note, these provisions can be included in a Will and ultimately addressed by the probate court; however, they are usually much easier to resolve in a trust.


In concluding I want to again make clear there can be other numerous reasons that a trust may make sense that I have not addressed; however, these are some of the objective factors that usually dictate a client should consider a trust.

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