Please realize that this is one person’s opinion. I am not persuaded that a trust need be terribly expensive to set up, and I have had experiences in which a trust made disbursement of an estate unbelievably simple. But people definitely disagree on this issue.
Personally, as a lawyer I long had a dislike for trusts, for reasons I need not go into. But we recently had a lawyer of long acquantance draw up a trust for us.
Both our trust and our wills are as simple as can be. (Of course, our assets/investments are pretty darned simple as well.) Entirety to the surviving spouse, and then divided equally between our 3 kids (and their kids.) We also have identified each other and our kids as beneficiaries/successor beneficiaries on any assets where applicable, and made every investment/asset we can “payable on death.”
We experienced some situations in which ostensibly intelligent and sophisticated people left horrendously disorganized estates, engendering all manner of costs and hurt feelings. Our goal is to avoid that and make things as clear, easy, and straightforward as possible for our kids/grandkids.
Separately, we asked our kids each to make lists of any of our personalty that they might want. Not surprisingly, they don’t want much of our stuff. But we simply intend to draw up a list of what should go to each kid. If the 3 of them decide to be jerks at that time, it is on them.
I disagree strongly. Closely related is my preference that people spend their own money to support them in their dotage, rather than preserving their wealth for their heirs. But that is food for another thread.
Currently no federal estate tax is due on estates less than $13,610,000. However, on January 1, 2026, the exemption drops to $5,000,000. That number is indexed to inflation and it would be about $7 million right now.
As simple as possible. Everything goes to my wife and then 1/3-1/3-1/3 to our kids (or their kids). My wife’s is the mirror image.
When you make a notarial will* in Quebec it is registered with the college of notaries and doesn’t need to be probated. The kids know about that.
*In Quebec a notary is a kind of minor league lawyer, mainly in the business of making wills and handling real estate transactions. I don’t about the rest of Canada. What is called a notary in the US is here called a commissioner for oaths.
I’m a lawyer and I practice in structuring and estate planning/administration/litigation. Have done for more than 20 years in Australia. I regularly deal with trusts, both testamentary and inter vivos. A significant proportion of small to medium enterprises in Australia utilise one or more discretionary trusts as part of their structure.
Virtually all estate administrations (in Australia) create a trust relationship - estate property generally vests in the executor until it is distributed to the beneficiaries. When I talk to clients about testamentary trusts, I am usually referring to testamentary discretionary trusts - where some or all of a beneficiary’s entitlement is held by a trustee under a discretionary trust created by the will. These arrangements can provide pretty effective asset protection and taxation flexibility, but there should be compelling reasons for their use to justify the additional expense and complexity. This could be associated with the asset position of the testator, the age of the beneficiaries, concerns about the beneficaries’ capacity or ability to manage their entitlement or because of a blended family. The asset threshold where one’s family would start to see some benefit from the use of a testamentary trust (from a taxation perspective, at least) is actually pretty modest here.
Recommending a trust because of the possibility the estate might incur additional legal costs down the track would be a pretty poor business model - particularly as the lawyer who made the recommendation would be potentially liable for those costs in negligence or otherwise face professional conduct complaints.
Most of my clients are pretty clear on what they want to achieve with their estate plan - its usually looking after their partner and their children. Control is probably the biggest issue that they have to turn their mind to, particularly control once the testator and their partner have both died.
Please understand, I’m not saying trusts don’t have their place here in USA estate administration. Of course they do, and in fact there are many things that can’t be effectively accomplished without one.
It’s just my opinion, based on experience in the State of California, that they were over-utilized for folks who really didn’t receive much benefit from the option.
Even more problematic is the situation where people set them up but then fail to keep them current. Lots and lots of headaches to remedy these omissions after the fact.
Again, just my non-lawyer opinion and everyone’s circumstances are different. People should always consult an attorney before finalizing their estate planning.
I once had to have a statement certified before a Commissioner of Oaths here in Ontario before two witnesses. This was a long time ago and I’m not sure if this was the same thing as a notary, but it really was the official title of this official. To this day I wonder how often the Commissioner of Oaths has solemnly recorded colourful expressions like “fuck you and the horse you rode in on”!
My wife’s family has “stuff” in a trust, which was set up long before her father died in the mid 1990s. Just out of curiosity I asked her once why did her parents set up a trust and what did it gain them? She didn’t know and neither did her siblings. Now, that’s their family’s *business, so if they’re OK with that, then OK. But for me personally, I think if I were part of some “financial/legal instrument” that I didn’t understand, I’d want to get a little more up to speed on things.
*“Business” in the sense of personal stuff, not meaning some commercial operation.
