Your Living Trust is considered funded when you actually transfer either part or all of your assets into the Trust and change the title document of your property or assets to the name of the Trust. Specific types of assets have procedures which must be followed. Talk to an estate attorney for more information if you have questions about how to do this properly.

If you choose not to fund your Trust until after your death, your assets may not be protected from probate, unless they are automatically transferred at the time of death or through a specific beneficiary designation. What happens to the property that has not been properly re-titled into the name of the Trust? It will have to be probated after your death.

Assets which can be transferred into the Trust can include:

• Cash accounts, savings accounts, certificates of deposits, and money market accounts.
• Brokerage accounts and non-retirement accounts.
• Nonqualified annuities.
• Stocks and bonds held in certificate form.
• Stocks held in a general and limited partnership, corporation, or limited liability company (LLC). There may be specific procedures which need to be reviewed and followed when dealing with ownership of a private business.
• Life insurance.
• Oil and gas and other mineral rights.
• Real Estate.
• Copyrights, patents, and trademarks.
• Personal property – this can include personal belongings such as books, computers, clothing, furniture, artwork, etc.
• Secured and unsecured loans which are owed to you.

The cost to create a Living Trust will vary depending on whether you have decided to do it yourself or hire an estate lawyer. If you do it yourself you can pay as little as $100 for resource materials and the online software. Hiring an estate attorney could cost anywhere from $1,500 to $4,500 depending on the complexity of your estate. 

WARNING: Trust law is very complex and violations or non-compliance with state law could invalidate your Trust. This means that any transfers of property to the Trust, or from the Trust to other people, would not be valid. That property would then have to go through the probate process – which could cost thousands of dollars and take as long as a year. It is usually worth spending more money up front to make sure things are done right.

Technically, your Will does not have to be notarized (unless you live in Louisiana where you are legally required to have your Will notarized). However, without notarization it will be harder to administer after your death and may even be invalidated. That is because most states require the witnesses who signed the Will to testify in probate court before the Will can go into effect, and if those witnesses are not available or no longer living then the Will cannot be “proved.”

Today, however, most Wills are designed to be “self-proving,” meaning that the witnesses are validated by a notary and aren’t required to appear in court or testify. This makes it easier to administer your Will after death. A self-proving Will DOES require notarization.

Yes. While it is not necessary to hire an attorney to create a legally-valid Will, it would be foolish to draft legal documents without a licensed attorney reviewing it. You wouldn’t perform surgery on yourself, and when it comes to legal documents, you shouldn’t attempt those on your own either. After filling out the questionnaire, a licensed attorney will contact you to discuss your wishes before drafting your documents. They will provide you with legal advice, discuss any tax consequences associated with your decisions, review your documents line-by-line if necessary, and make any corrections that are needed.

When you pass away without a Will, your estate is deemed “intestate.” Laws for intestate estates vary from state to state but typically those law, enforced through the court, will decide how your debts will be paid and your remaining assets will be distributed. For example, in Illinois if you are married and have children and die intestate, your spouse will get half of your property and your children will equally divide the remaining portion. No other family, friends, or favorite organizations will be considered. 

If you want to control who gets your property and in what amounts, prioritizing your Estate Planning is a must. With intestate laws in each state, not having a proper plan, is still a plan – a default plan set by the state – you just might not like how things end up.

A Will alone will not protect you from probate. In fact, having a Will will almost certainly guarantee probate. If you own any assets that are owned exclusively by you, meaning they are not jointly owned by you and another person, are not payable-on-death, don’t have any beneficiary designations, or are left out of a Living Trust, then those properties will be subject to probate.

The only way to avoid probate is to not own any property exclusively or to transfer all your property into a Living Trust.

This is where most people get things wrong – they create their Will but forget to change it when their circumstances change. Because our lives are always changing, we suggest that you should review and/or update your Will after any life milestone or every three to five years. Milestones can include: marriage or remarriage, divorce, the purchase of a home or other real estate, the birth of a child, before any significant travel or risky activity, and after any deaths in the family.

Updating your Will is easy and you do not need an attorney to make changes to your Will, but it is wise to consult an attorney. Seemingly insignificant words and phrases may have a powerful legal meaning behind them and if you don’t know what you are doing, you could unintentionally create enormous problems for your family after you are gone. 

There are three ways to go about updating your Will: 

(1) create a codicil – this is a separate legal document that acts like an amendment to the original Will. It must reference the original Will and specifically identify what is being changed and how. 

(2) Write a brand new Will – make sure that it is revokes all previous Wills or it could unintentionally act as a codicil. 

(3) Make a personal property memorandum – This is a document that lists your personal property and to whom each piece is to go. This option is risky because many states require that the personal property memorandum both exist when the original Will was created and that it be referenced in the original Will. 

In general, creating a codicil is the easiest way to go and can include a personal property memorandum. Just remember that it must be signed in the exact same way your original Will was signed (signed by you, two witnesses who are not family or heirs identified in the Will and who physically watched you sign the Will, and notarized). Failure to sign it properly will result in the document being invalid.

Yes, you can create a Will for someone else such as your spouse, child, or a loved one. However, the person for whom the Will is created (known as the Testator) will need to review, approve, and sign the document in front of witnesses in order for it to be valid.