There are definitely two camps in the lawyers’ world, and they are split over whether it is better to have a living trust or as will. My mentor in law school and I have argued for 30 years over whether a will is sufficient for a client or if they routinely need a living trust. Our argument is pretty much the classic living trust vs will battle that has raged since the early 1970’s.
Actually, both sides of the wills vs trusts argument has some truth to it. Living trusts became popular in California in the early 1970’s and spread to the East Coast in the late 1990’s. Living trusts are primarily used to avoid probate. Lawyers love wills, because they guarantee a probate fee in the future. Other lawyers love setting up trusts because they generate a big fee up front and often don’t avoid probate, so the the lawyer still gets the probate fee in the end.
So the one side says you should just get a will and bag the expense upfront for the trust, because the poor sucker (oops, client) isn’t going to avoid probate anyway. The other side says that the living trust is a great tool, and the client should at least have a chance to avoid probate.
The fault isn’t with the living trust, it’s with the client. The real problem is the attorney never teaches the client how to use their living trust.
My father-in-law got “persuaded” to do a living trust in 1979. This guy was a national advocate of living trusts and a big voice in the living trust vs will argument. He wasn’t cheap. In today’s dollars my father-in-law spent about $8,500 for the trust. He did get a good living trust. (Your chances of getting a good living trust aren’t good. Fortune Magazine several years ago reported that only 1% of American lawyers knew how to draft a good living trust will.) When I got out of law school in 1981 and looked at the trust, I soon determined that he would go through probate just like everyone else. He had fallen prey to the classic living trust vs will scam on the living trust side.
His living trust was ok, but he hadn’t been taught how to use it. Oh, he sat and argued with me. He said he knew how to use the wills and trust. “His attorney had taught him everything about the living trust.” NO! The lawyers never teach you how to use the trust. It’s a conflict of interest. If they don’t teach you how to use your will trust you don’t avoid probate, so they get the big fee for the trust and the probate too.
That’s the heart of the argument the will attorneys make in the wills vs trusts argument. They have a point. I have done hundreds of living wills and trusts, and I’ll just brag. I have yet to have a client go through probate. YOU are smart enough to use your living trust. If you follow the will side of the living trust vs will argument, you are for sure going through probate. You don’t have a chance of avoiding probate on that side of the living trust vs will battle. The living trust wills opponents in the living trust vs will battle point to the will lawyers and point out that the bulk of lawyers “screw” their clients in the probate process. They often run their clock until the estate is essentially gone. My mentor attorney never sees that happen, because he only deals with the elite attorneys and estates over $50 million. He never sees the masses of attorneys that take advantage of Mom and Pop.
Which side of the living trust vs will battle you end up on is going to depend on your level of education and choice of lawyer. Blindly walking in off the street and saying, “Hi, here I am Mr. Lawyer; set me up.” It’s going to get you exactly that – a set up. It doesn’t matter which side of the living trust vs will battle you side with. You LOSE!