How can I begin the process of setting up a revocable trust?

1 answer | Last updated: Oct 29, 2016
Leigh11 asked...

Can I find papers on the internet to fill out to create a revocable living trust? Will I need to pay stamp duty for it to become a legal document? I have two sons, can they both be executors of the trust? Will this be protection for my sons if they divorce guaranteeing my assets will not be split between their spouses if they divorce?


Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

There are some good self-help products"”both books and software"”on and off the Internet that can help you set up a living trust on your own. And the best of them will take you clearly through the steps you need to take to finalize the trust and make it legal in your state and your circumstance.

But you raise a couple concerns that might complicate your situation enough to at least have a lawyer review the trust you plan to put into place.

First, it can be a bit tricky to name both your sons to act jointly as successor co-trustees, or the people you choose to manage the trust property after your death. This is basically the same as naming them as executors if you had a will; the language is just a bit different for trusts.

If you appoint both sons, you must decide how they will share authority"”whether each can act separately, r whether they both must agree to all actions concerning the property. What s most important is that you are as sure as possible that the two of them will get along and agree, so that carrying out the trust terms goes smoothly. This is not an insurmountable obstacle. Many trusts do operate with two siblings as successor co-trustees. You just need to be aware of the potential risks and downsides.

Your other intention"”making sure that your son's spouses get none of the trust property in case of divorce"”can be a bit trickier to arrange. The particular property rights might depend, for example, on whether a son and his current wife lives in a community property state and whether they have a prenuptial agreement in place and such. Putting a control on trust property is sometimes called giving a "conditional gift," as in: "I give Joe this property, but only if he takes the trash out every night."

One option for you might be to do a draft of the living trust using a self-help product such as Nolo's Online Living Trust or Make Your Own Living Trust, also published by Nolo.

Then hire a lawyer for the limited purpose of reviewing it to make sure it meets your needs, which should help the legal costs to a minimum.