I am a do it yourself. I love working on my house: painting, building and even stuccoing. But there are exceptions, like plumbing. I hate plumbing.

One thing I’ve learned about my handyman hobby is that I should expect to buy twice the building materials I need to complete the project. Experience tells me that I will use all those materials. My habit is to try to build the first time, fail, and then try again. Almost invariably, I’ll end up building or fixing the same thing at least twice, once or twice for practice and then “for real”.

Some who would never consider fixing a garage door or plastering a wall would unthinkingly prepare a will or trust using many materials found in bookstores. Bookstores abound with quick-fix books and CDs for being your own lawyer, with forms and fill-in-the-blank forms, and programs for wills, trusts, and powers of attorney for health care decisions. Some of these materials are even state-specific and offer different provisions for residents of different states.

Some of these DIY materials are fine and can even be useful. If used correctly, many of these forms could work for someone doing it on their own. But suppose your case is different? Suppose you are not using the form correctly?

One thing I have noticed about building materials is that the old rule of thumb usually applies: you get what you pay for. The same is true in estate planning. But it’s also true that legal documents like wills and trusts often don’t “speak” until the author dies or becomes incapacitated. Due to this fact, in the case of estate plans, the handyman analogy of buying twice as much building materials breaks down. If a wall is poorly built, it can be torn down and remade. But if a will is drafted incorrectly, or fails to state the author’s intent, there is often no opportunity for a second try. Rather, in many cases, when the author of the will or trust is incapacitated or deceased, the planning “solution” fails or has completely unexpected and unintended consequences.

Still, to be a good consumer of legal services, self-education is essential in communicating your needs to an estate planning professional. The following is an overview of some of the main estate planning topics that should be applicable in most states.

Aid! I must avoid succession!

When I was young, I remember seeing a thick blue pamphlet on my family’s bookshelf written by Norman F. Dacy, entitled How to avoid succession. The book is a classic and helped spark the movement within the estate planning field away from wills and toward “living” or “inter vivos” (Latin for “during life”) trusts.

Some now associate the word “probate” with the twin evils of expense and delay. Many conclude that succession is “bad,” but they may have no idea why that is, or even what exactly succession is. Simply put, “probate” is a court-supervised method of transferring property and compensating creditors after death. In California, for example, there are two main methods of communicating disposition wishes in a court-supervised probate proceeding. The first is through a duly witnessed and executed will. The second method is through a “holographic” or handwritten will (although not all states offer a holographic will). To be valid, both types of will have specific requirements, details of which are beyond this article.

One myth held by many is that a person’s assets will always go “to the estate” if he or she dies without leaving a will. this is false. “Intestacy” statutes provide for specific property dispositions in the absence of a will; however, these provisions may not achieve the desired result. For example, in California, if a wife with her husband’s two adult children dies, the husband, by definition, would already own one-half (1/2) of the community interest in the entire estate. Under intestacy statutes, the husband would also receive one-half (1/2) of the wife’s community share. [California Probate Code §6401(a)] (now giving him a full three-fourths (3/4) share of their total estate) and the two adult sons would divide the remaining half (1/2) of their mother’s estate. [California Probate Code §6402(a)]. However, this may not be for the best: if the children are stingy, well-to-do adults, the wife may have wanted her entire estate to go to her surviving husband.

Another myth is that sequences are always endless and are forever terribly expensive. While estates can be time-consuming and expensive, most can be handled in months, depending on the complexity of the estate, the number of creditors, and other factors, such as the strength of family relationships. On the other hand, there is certainly truth in the criticism that probate can be protracted affairs: I am personally familiar with a probate that has been pending since 1991, some 16 years. Also, probate can take longer if there are complicated circumstances such as (for example) heirs being difficult to locate or if there are disputes between family members.

With respect to the issue of expenses, in California, the fees of ordinary attorneys and personal representatives are determined by law and are specifically set forth in the Probate Code. [California Probate Code §§10800]. Sometimes extraordinary expenses can be charged, but the court must allow the additional expense. Sometimes expenses can be saved if the personal representative waives their fee. If the executor or administrator is a family member, rather than an institution or professional, fees are often waived to save costs.

In the final analysis, trusts are often more expensive to prepare than wills, but wills administered through a court-supervised estate are often more expensive and time-consuming than administering a trust. However, at least in California, there is another possible alternative: An expedited procedure for small estates (i.e., estates less than $100,000, excluding exempt property). [California Probate Code §13100], which does not require the opening and administration of an inheritance. Therefore, in some cases it may not even be necessary to open an estate.

Do I trust trusts?

Trusts are all the rage, and for good reason. In general, you can avoid probate court by transferring the property to a trust. When someone places property in a trust, they transfer the property to a trustee, who manages and disposes of the property according to the instructions in the trust agreement. Typically, in the case of a fully revocable trust (meaning the trust can be easily amended or revoked), the originators of the trust (called “settlors” or “settlors”) are also the trustees. In effect, the trustee in such a case manages his own money.

When you own your property outright, you can obviously sell it, rent it, spend it, or keep it. Depending on how it is worded, the same applies in the case of a settlor placing his property in a fully revocable living trust; the property in such a case can also be sold, spent or leased. For all practical purposes, the settler in such a case remains the owner of the property. However, when the settlor dies, the settlor’s successor trustees take over the management of the trust, passing the property to the beneficiaries and usually bypassing probate court. Such a revocable trust, by itself, does not confer any tax benefits, although there are certain types of trusts and estate plans that may, on occasion, provide such benefits.

Where the will or the confidence?

Like anything, there are pros and cons when choosing between a will and a trust. Most of the pros and cons relate to cost:

• Wills are generally less expensive than trusts to prepare. Trusts are often longer documents and require transfers of ownership when “funded.”
• Trusts are typically less expensive to administer than wills. However, probate can be expensive, depending on the size of the estate. While there are costs associated with administering the trust, it is generally less expensive than filing a petition to probate.

Depending on the circumstances, trusts may provide similar benefits to certain types of conservatories. If a settler becomes unable to manage his own affairs, the successor trustee can step in and make the necessary decisions to manage the financial affairs of the settlers. Wills do not offer this benefit. However, if a person suffers from dementia, for example, a guardianship “of the person” may still be necessary.

There are benefits to each approach. Also, the law governing wills and trusts can vary from state to state. You should consult with a competent estate planning attorney to choose the approach that is right for you.

Disclaimer: The information in this article is not legal advice and its use does not create an attorney-client relationship. Any liability that may arise from your use of or reliance on this article or any link in this article is expressly disclaimed. This article should not be relied upon as legal advice, and is subject to change without notice, or may contain outdated or dated information, or information that is not relevant to your jurisdiction. If you need legal services, you should consult an attorney.