JJ Luna

Reply to Wendy

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I want to define some terms here first. Every state legislature has passed legislation that determines how an estate is settled if the decedent (dead person) doesn't let anyone know what they want done with their estate, or they create a will. These laws are called the probate laws. They are administered in probate court.

Probate is a court process, which is why it has a reputation for being slow, and therefore expensive. When you're paying a probate attorney by the hour, slow is expensive.

Every state, in theory, has a different set of laws and a different process to administer them. A trust, just like an LLC, gets it's authority from the state legislature. What is this thing called authority that state legislatures must give for something to have the force of law? Let's say I have a document in my hand that is called "document B". If the Arizona legislature passes legislation that says "document B" is legally binding when it is signed, then that document in my hand, that I just signed, is legally binding. If the Arizona legislature has never passed a law referring to "document B" in any way, then signing that document is meaningless because it does not have the force of law.

This explanation is oversimplified, of course, but it makes my point well. Laws that create/authorize Trusts and LLC's are passed by state legislatures. A revocable Trust was created by the state legislatures to be a legal entity, separate from the person who created it. That means it can live on after the decedent dies, as an irrevocable trust. Living things do not go to probate court. That means living things don't have to pay probate attorneys. That was the central ideal behind the creation of the Trust.

Yes, trusts are state specific. For example, The North Carolina townhouse that Jane Doe remembered to put in her North Carolina revocable trust will be settled according to the North Carolina state laws that authorize the Trust and create the procedures necessary to administer/settle them. The Maryland Townhouse that Jane Doe remembered to put in her Maryland revocable Trust will be settled according to Maryland law. This means there is one decedent, and two separate Trust settlements. Real estate is an example of property that cannot be moved. Real estate in more than one state means revocable Trusts in more than one state.

Out of state bank accounts can be brought back to your home state by updating the address the bank has. Know your state tax laws and filing requirements (each state you have a Trust in). Learn them by going online to each department of revenue. There is at least one state in the union that does not use Trusts. I think it is Alabama. I'm not sure.

The first step that is necessary when you create an estate plan is to understand the legal procedures that must be followed to settle/administer the tool you are thinking of using. From here, work backwards to figure out how to organize the estate so settlement is easy when the time comes. Easy means clearly written and follows procedures. For property that cannot be moved, use one revocable Trust per state you have property in.

You can create a simple Trust, to hold property, without an attorney. If your situation is complex, an attorney, per state, may help you understand specific procedures necessary to administer very specific situations according to state law. An attorney is unecessary unless your situation is complex beyond your ability to understand the laws that apply. If you use an attorney to create your Trust, be advised he may expect or require you to pay him to settle it when the time comes.

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