Dear Len & Rosie,
Can I make my own trust? I made up my own will by following the guidelines. I have tried to look up the requirements of filing a trust in California, but I have been unable to find any. I have consulted many publications at the local community college but I have been likewise unsuccessful. Do you know of any publications or forms that I can get to make my own trust?
A will isn’t that hard to create for yourself. You can make a valid holographic will that distributes your estate, as long as you write it out in your own handwriting, and sign and date it. You do not need a witness. If you type out your will, your signature must be witnessed by two adults who will not receive anything from your estate.
People making their own wills may be better off making a California Statutory Form Will. Just search for it on the Internet. You can also download it for free from the State Bar web page at www.calbar.ca.gov under the link for “Will Form”. Or, contact us via www.lentillem.com and we’ll send you the form. Just follow the directions closely. The law does not readily forgive drafting errors.
But you want to make your own trust. Trusts are more complex. Most people do not understand trusts, and their subtleties take a long time to learn. For instance, in your letter, you talked of “filing” a trust. Trusts do not have to be filed or recorded. They are not meant to be public documents.
If you were to make your own trust, you could easily make fundamental mistakes which can render your estate plan unworkable after your death. You should take into account the age of your beneficiaries and their relationships with one another; the size of your estate and the eventual source of money to pay any estate taxes and debts that might be due when you die; disabilities of your children or other beneficiaries; what to do with retirement accounts, survivor’s pensions and deferred annuities; who is trustworthy enough to be successor trustee after your death; and many more issues.
If you still want to make your own trust, there are many books, computer programs, and webpages where you can create an inexpensive trust without a lawyer. Please understand that there is no particular product that we will endorse. We have reviewed many self-made trusts over the years. Most of them omit what we believe to be necessary provisions. If you create your own trust, you should, at the very least, have it reviewed by an attorney.
Finally, do not forget to transfer your assets into your trust so that they will avoid probate on your death. As a rule of thumb, everything should be in the trust except for automobiles, tax deferred accounts such as retirement accounts, annuities and deferred compensation, and it’s always better to keep your checking account out of the trust and add a trusted child to the account so he or she would have immediate access to some funds in the event of an emergency.
Len & Rosie