Questions to Ask a Trust Attorney
For anyone meeting a trust attorney for the first time, whether you are weighing a living trust against a will, have already been told you need one, or have had an irrevocable trust suggested and want to know what you would give up. The 56 questions run in the order the meeting tends to go: whether you need a trust at all, which kind, the trustee and your heirs, funding, fees and the firm, and what happens later on. Trust law differs by state and country, so treat the notes as prompts for the attorney and not as legal advice.
The questions
Each question, and why to ask it
Do I need one
From what I have told you, do I need a trust at all?
Why ask it
Put this first, before anyone starts comparing types. Give the short version of your facts, what you own, where it is and who depends on you, and listen for the specific problem a trust would solve. 'Everyone should have one' is not an answer to your facts.
How does a trust compare with a will for what I am trying to do?
Why ask it
A trust is normally added to a will, not swapped for one, and for particular reasons: avoiding probate, privacy, property in more than one state, or control over when heirs receive their money. If none of those apply to you, expect the attorney to say so.
What are the alternatives here, and when would you tell someone not to bother with a trust?
Why ask it
Beneficiary designations, joint titling and, in the states that allow them, transfer-on-death deeds can do some of the same work for far less. Willingness to name the cheaper route is one of the better tests of who you are dealing with.
What would probate cost, and how long would it take, for an estate like mine in this state?
Why ask it
Skipping probate is the benefit most people come in for, and its real weight depends on where you live and what you own. A rough fee and a number of months for your estate gives you something to set against the price of the trust.
My children are young. How would a trust handle what they inherit?
Why ask it
What happens to money left to a minor without a trust is set by local law, and it can involve a court or a handover at an age you would not pick. Find out who would manage the money, what it could be spent on, and the age or ages at which each child takes control.
I own property in another state. Does that change your answer?
Why ask it
Real estate in a second state can mean a second court process there after a death, which is one of the clearer reasons people use a trust. Bring the deed, and have the attorney explain how both states would treat that property with and without one.
Is privacy a real benefit for me, or mostly a selling point?
Why ask it
A will that goes through probate usually becomes a court record, while a trust generally stays out of the file, though the detail varies by state. The practical test is who would bother to look and whether it matters for your family, a business or a property you would rather keep quiet.
Which trust
Which type of trust do you think fits my situation, and why that one rather than the others?
Why ask it
The reasoning matters more than the name of the trust. An attorney who ties the choice to specific facts you have given, your property, your state, your family, is doing the work; one who describes a standard package is selling a document.
Are you suggesting a revocable trust or an irrevocable one, and what would I gain and give up with each?
Why ask it
These are two different tools that share a name. One you can rewrite or cancel, and the other is meant to stay fixed in return for results the first is not built to deliver. Have each described using your own house and accounts, not in the abstract.
Can I be my own trustee and carry on as I do now?
Why ask it
With a living trust the person who sets it up very often stays in charge, and daily life barely changes. Check the small things: how the accounts will be named, how you sign for a sale or a loan, and whether the trust needs a tax return of its own while you are alive.
If the trust is irrevocable, what could I no longer do with the house or the money once it is in?
Why ask it
Go through it asset by asset: living in the house, selling it, taking the income, borrowing against it, changing who inherits. The protective features people want usually come from giving something up, and what you keep is fixed by the document and by state law, so the answer should come from the draft.
With an irrevocable trust, who should be the trustee, and can it be me or my spouse?
Why ask it
Whether the person who creates or benefits from the trust may also run it can decide whether the trust does the job it was set up for, and the answer changes with the purpose and the state. Get the reason behind the recommendation, not only a name.
Irrevocable sounds final. If the law or my family changes, is there any way to adjust it?
Why ask it
Depending on the state there may be routes such as a trust protector, the beneficiaries' agreement, moving the assets into a newer trust or a court order, and some can be written in from the start. Which of those exist where you live, and which this attorney would build into your document, is the detail to leave with.
What protection does this give against creditors or a lawsuit, and what does it not give?
Why ask it
A trust you can revoke is generally treated as still yours, so expect to hear that it shields little, and how far any other kind goes depends on state law and on when the transfer is made. An attorney willing to state the limits clearly is more useful than one who leaves the impression of a shield.
If I need long-term care one day, does this trust help, hurt or make no difference?
Why ask it
The rules that link trusts to help with care costs are strict, tied to timing and different in every state and country. Say so now if it is on your mind, and find out whether this attorney does that planning or would send you to an elder law specialist.
What are the tax consequences, both during my lifetime and for my estate?
Why ask it
Trusts are sometimes sold as though they save tax simply by existing, and for one you can revoke the answer during your life is often that nothing changes. Get three answers: your return now, the position at death, and how much of it rests on thresholds or state rules that could move.
If the trust is irrevocable, who files a tax return for it and who pays tax on what it earns?
Why ask it
That turns on how the trust is drafted and on rules that differ by country and change over time; it can fall on you, the trust or the beneficiaries. Have the attorney, or the accountant they work with, walk through an ordinary year using a rough figure for your assets.
How does this interact with my retirement accounts and life insurance?
Why ask it
Retirement accounts and insurance policies usually pass by beneficiary form, and naming a trust on that form can change how quickly heirs must take the money and pay tax on it. The rules are technical and have changed over the years, so ask for the recommendation and its reasoning in writing.
We are married. Should we have one joint trust or one each?
Why ask it
Which is usual depends on your state's property rules, and a second marriage or children from earlier relationships can tip it the other way. The part to pin down is what the survivor can change after the first death, because that decides whether each of your wishes holds.
Do I still need a will once the trust exists, and what will it say?
Why ask it
Most trust plans come with a short will that catches anything left outside the trust, and it is usually where parents name a guardian for young children. Check what happens to an asset that will has to catch: whether it would go through probate where you live.
Trustee and heirs
How should I choose a trustee, and what will that person actually have to do?
Why ask it
The duties are concrete: recordkeeping, tax filings, investment decisions, saying no to beneficiaries. Hearing the real workload usually changes people's first choice, particularly when the first choice was the eldest child.
Would you recommend a professional trustee in my case, and what do they charge?
Why ask it
Banks and trust companies commonly charge a yearly percentage of what they manage, and some will not take a smaller trust at all. A figure worked out on your own numbers, set beside what a family trustee would pay an accountant and an adviser for help, makes the choice concrete.
Who takes over if my trustee dies, says no or cannot manage, and how many backups should I name?
Why ask it
The person you choose today may be unwilling, unwell or abroad when the time comes. A named order of successors, and a way to appoint someone if the list runs out, can spare the family a court application over what is otherwise a formality.
Should two of my children serve as co-trustees, or is one better?
Why ask it
Naming both feels fair and can be slow in practice, since co-trustees may have to agree on, and sign for, every step, depending on the document and state law. Have the tie-breaker explained, and talk through how to tell the child who is not chosen.
If a trustee does the job badly, how can the beneficiaries replace them?
Why ask it
Where the document is silent, removal usually means going to court and proving a reason. A clause that says who may remove a trustee, on what grounds and who appoints the next one is cheap to add now and hard to get later.
Should my heirs get their shares outright, in stages at set ages, or held in trust for longer?
Why ask it
Each choice trades simplicity for protection: an outright gift is finished quickly, staged ages spread the risk of one bad year, and a share kept in trust leans on the trustee for decades. Have the attorney say what each heir would actually receive at 25 under the draft, in plain words and not clause numbers.
How much discretion should the trustee have over payments, and what wording would you use?
Why ask it
A fixed schedule is predictable and cannot adapt, while discretion adapts and rests everything on the trustee's judgement. Have the proposed standard read aloud, then test it on a real case: a house deposit, a business idea, a year without work.
What does the document do if one of my heirs divorces, runs into debt or struggles with addiction?
Why ask it
Clauses that let a trustee hold back or redirect a share are written for exactly these cases, and how well they stand up to a creditor or a former spouse depends on state law. They are far easier to include at the start than to add once the trouble has a name, so raise the worry even if it feels disloyal.
One of my beneficiaries receives disability benefits. How do I leave them something without costing them that help?
Why ask it
An inheritance paid outright can put means-tested benefits at risk, which is why special needs trusts exist, and the rules belong to each program and state. Find out whether this attorney drafts them regularly or would bring in someone who does, because small wording errors matter here.
What happens to a share if that beneficiary dies before I do?
Why ask it
The share might pass to that person's children, be split among the others or go somewhere nobody intended, and the wording decides. Trace it with real names from your family tree, and name a last resort in case nobody on the list survives you.
Can I leave someone out or leave unequal shares, and what makes that hold up?
Why ask it
How free you are to do this, particularly with a spouse, depends on your state or country. Bring up no-contest clauses and whether courts where you live enforce them, and what the attorney suggests you say or write to the family in advance.
What will my beneficiaries be entitled to see, and from when?
Why ask it
A beneficiary's right to a copy of the trust and to regular accounts comes from state law and from the document itself. People who want their plans kept quiet while they are alive should hear what can stay private, and what the trustee must send out after a death.
Funding
What does funding involve, and which of my assets have to be retitled?
Why ask it
The classic failure is a trust that was signed and never funded: the document exists, the assets never moved, and the estate goes through probate anyway. Go down your own list, house, accounts, vehicles, business, and mark which need a new title, which a new beneficiary form and which nothing at all.
Who prepares and records the new deed for my house, and what does it do to my mortgage, insurance and property tax?
Why ask it
Moving a home into a trust touches more than the deed: the lender, the title and homeowner's policies and any local tax exemption may each have a rule. Those rules are set state by state and company by company, so have the attorney say which ones they check and which calls are yours to make.
Which of my assets should stay outside the trust?
Why ask it
Some things are normally left out, and retirement accounts and certain vehicles are common examples, though the list changes with the state and the asset. A two-column page, in and out, with how each 'out' item reaches your heirs, is worth asking for.
How do my bank and brokerage accounts get moved, and what will those firms want from me?
Why ask it
Every institution has its own form and its own idea of what proof is enough. Many accept a short certification of trust in place of the whole document, which keeps your terms private, so check whether the firm prepares one and steps in when a bank is difficult.
I own part of a business. Can my share go into the trust?
Why ask it
An operating or shareholder agreement may restrict transfers or require the other owners' consent, and for some kinds of company the owner's identity affects how it is taxed. Bring the agreement to the meeting so this is answered from the document and not from memory.
What happens to anything I buy or open after the trust is signed?
Why ask it
A house bought or an account opened in your own name next year sits outside the trust unless someone titles it correctly. Get the exact name to use on future purchases, written out, and keep it where you will find it at a closing table.
Will you give me a written funding checklist and confirm later that each item was done?
Why ask it
Firms differ: some send instruction letters for every asset and chase the confirmations, others hand over a binder and wish you well. Establish which this is, and whether a funding review a few months on is part of the fee or billed separately.
How long does the process take, from today to a trust that is actually funded?
Why ask it
Drafting and signing tend to be the quick part; retitling can run on for months where real estate, a business interest or out-of-state property is involved. A timeline that ends at the signing appointment is describing half the job.
Fees and the firm
How much of your practice is trusts, and roughly how many have you drafted in the past year?
Why ask it
A general practitioner who writes a trust now and then and a lawyer who does it weekly will both say yes to 'do you handle trusts'. A proportion and a number are harder to blur, and so is a description of the last one that resembled yours.
Do you also act for trustees after a death, or in disputes over trusts?
Why ask it
A lawyer who has sat beside a successor trustee trying to follow someone else's drafting knows which clauses cause arguments. Have them name one thing they now write differently because of what they saw go wrong.
Who writes my documents, and who do I call when I have a question?
Why ask it
A paralegal or junior lawyer often prepares the first draft, which is ordinary and can hold the fee down. What matters is that the attorney you met reads every page before you sign, and that you know whose phone rings when you are confused.
Do you begin from a standard form, and which parts will be written for me?
Why ask it
Nearly every trust starts from a template, and that is no criticism. The useful answer points to the sections that change with your facts, usually distributions, trustee powers and anything about a business or a vulnerable heir, and offers a plain summary to go with the legal text.
What would I be risking if I used an online trust form instead of hiring you?
Why ask it
A fair question, and a good attorney answers it from your facts: the deed nobody would retitle, the house in another state, the child from a first marriage. If the candid answer is that a form would probably do for now, you have learned something useful about the person across the desk.
What will this cost to set up, and what will it cost each year afterwards?
Why ask it
Setup is the figure everyone quotes; the running cost is the one people forget to ask about. A trust you can revoke and manage yourself may cost close to nothing in a quiet year, while one with its own tax return or a paid trustee carries a yearly bill, so get both numbers for the trust being proposed.
What does your fee include: the trust alone, or the will, powers of attorney and deeds as well?
Why ask it
Two quotes can differ by half and describe different jobs. Line them up item by item: the trust, the will that goes with it, documents for incapacity, each deed, the funding letters, and one round of changes after you have read the draft.
Does anyone at the firm earn commission on insurance, annuities or investments?
Why ask it
Trust planning is sometimes offered as the front door to a financial product, particularly at free seminars. A lawyer paid only by your legal fee can say so in one sentence; a longer answer deserves a follow-up about who is paid what.
Will the scope, the fee and what is left out be in an engagement letter before I pay?
Why ask it
The letter is where 'I assumed that was included' gets settled in advance. Read it for the deeds, the funding work and later amendments, and query anything discussed in the meeting that is missing from the page.
Later on
Who steps in if I become unable to manage my own affairs, and what would they have to show?
Why ask it
A trust can let a successor trustee take over without a court, provided the document says how incapacity is decided: one doctor's letter, two, or a named person's judgement. Check that your power of attorney names the same people, since it usually has to cover whatever sits outside the trust.
Can I change or revoke this later, and what does that take?
Why ask it
Get the mechanics and the price: a short amendment for a small change, a full restatement when the changes pile up, and who can sign if you are no longer able to. Vague reassurance about flexibility is not the same as a stated procedure.
Which events should send me back to you for an update?
Why ask it
Marriage, divorce, a birth, a death, a sale of the business, a large inheritance: get the firm's own list and their view on how often to review even when nothing has happened. Find out what a routine check costs, since a price you know is a visit you will actually make.
If I move to another state, is this trust still good?
Why ask it
A trust generally travels better than people fear, but property rules, state taxes and the documents that sit beside it can differ across a state line. The sound answer is to have a lawyer in the new state read it, with a note on which parts are likeliest to need changing.
Where are the signed originals kept, and what should my successor trustee have now?
Why ask it
A trustee who cannot find the document, or does not know they were named, starts from behind. Settle who holds the original, who gets copies, and whether your successor should receive the full trust today or only a note saying where it is.
What goes wrong most often with trusts like this one?
Why ask it
Asking about failures gets a more candid picture than asking about benefits. The usual answers are unfunded trusts, stale beneficiary designations and trustees who never got instructions, and each of those is preventable now.
After I die, what does my trustee have to do first, and will your firm help them?
Why ask it
The first weeks tend to bring notices, valuations and deadlines the trustee has never heard of, all set by state law. Find out whether the firm does that work and at what rate, and whether it will write a one-page 'start here' for your trustee to keep with the documents.
Working with a trust attorney
Practical guidance for the conversation itself
Preparing for the meeting
Bring a list of what you own and how it is titled
Property with addresses and how the deed reads, account types and rough balances, life insurance, retirement plans, business interests, and any property in another state or country. How each asset is titled often decides what a trust would change, and it is the detail people most often leave out.
Bring the existing paperwork
Any current will, power of attorney, healthcare directive, prenuptial agreement, divorce decree or existing trust. Planning is often built on documents that no longer say what people remember them saying.
Write down what you want to happen
Who should receive what, who should be in charge, and anything you specifically want to prevent. Two or three plain sentences are more useful to an attorney than a list of instruments you have read about.
If the lawyer suggests an irrevocable trust
Get the purpose in one sentence
An irrevocable trust is usually proposed for one particular job: a tax result, protection from future claims, planning for care costs, or providing for someone who cannot manage money. Have the lawyer say which job this one does for you, and what would have to be true of your finances for it to be worth doing.
Hear what you give up in your own terms
The trade is control in return for that result. Take the house, the savings and the income one at a time and write down what you could still do with each after the transfer, and what would need someone else's signature.
Take the draft home
A step that is hard to reverse does not need to be decided at the first meeting. Leave with the draft and a plain summary, give it a week, and where the sums are large consider a second opinion from another estate planning lawyer or your accountant.
Understanding how you will be charged
- 1Establish first whether the figure is a flat fee for a defined package or an estimate of hourly work, because the two cannot be compared directly.
- 2Check whether the deeds, the recording charges and the letters to your banks are inside the price or billed as they come.
- 3Note the hourly rate that applies after signing, to amendments and to short questions by phone or email.
- 4Helping your trustee after a death is usually a separate piece of work, so find out how the firm prices it today.
- 5Read the engagement letter for scope before you pay a retainer, and have anything missing added in writing.
Things worth watching for
A trust recommended before your facts are known
If the recommendation arrives before anyone has asked what you own, where it sits and who depends on you, it is a product rather than advice. The same is true of seminars that end with a signing appointment.
Investment products bundled with the planning
Where the person drafting your documents also sells annuities or insurance for commission, the plan tends to bend toward the product. Ask directly whether anyone involved earns anything beyond the legal fee.
Silence about probate in your own state
Avoiding probate is the usual selling point, but its cost and difficulty vary widely by state and by asset. Ask what probate would actually involve for your estate as it stands today.
No mention of funding after signing
A trust that is never funded controls nothing that was left outside it. If the plan ends with executed documents and no schedule for retitling assets, the work is unfinished.
After the trust is in place
- Keep a written list of what has been retitled and what has not, and finish the gaps rather than assuming.
- Review beneficiary designations on retirement accounts and insurance, since those forms, and not the trust, usually decide where that money goes.
- Give your successor trustee a copy or tell them where the documents are kept, along with contact details for the attorney and accountant.
- Revisit the plan after a marriage, divorce, death, birth, move to another state, or a significant change in assets.
- Keep an updated schedule of trust assets with the documents, because reconstructing it later falls to whoever takes over.