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How to Create a Living Trust in Delaware

A Delaware living trust can help you make sure your family is taken care of after you pass away.

A Delaware living trust helps you bypass probate and can ensure that your assets and property transfer promptly to your loved ones after you die. Creating a living trust may not be needed by everyone, though, so it’s important to understand why you may want to consider this tool. Read on to find out if it’s the right option for you and to learn everything else you may be wondering about living trusts in the state of Delaware. For more help with your estate planning, consider creating an entire plan with the help of a financial advisor.

How to Create a Living Trust in Delaware

Creating a living trust is pretty much the same process no matter what state you live in because it’s a legal document and most states don’t have separate rules. To create a living trust in Delaware, follow these six steps:

  1. Choose the type of trust: Many people prefer revocable living trusts (as opposed to irrevocable ones) because they can keep control of their estate, remove assets at any time and cancel the entire trust if they want. If you are married, you’ll likely want a joint trust, though if it’s a marriage from later in life and you have separate assets, two single trusts may be more appropriate.
  2. Identify the assets you want in the trust: Next, you should identify the assets you want to put in the living trust and then gather the relevant documents. These may include bank accounts and certificates of deposit (CDs), titles to your cars and deeds to real property like your home.
  3. Choose a trustee: The trustee will manage assets in the trust. If you designate yourself as the trustee, you’d need to select a successor to the trustee.
  4. Create the trust document: You can do this using online software or with the help of an estate planning lawyer.
  5. Execute the trust documents: Sign the document in front of a notary public.
  6. Fund your trust by transferring assets to it: You can do this on your own, but the paperwork can be tricky, so you may want help from a lawyer or financial advisor.

What Is a Living Trust?

Like a will, a living trust is a legal document that assigns who should receive property when the owner (or trust grantor) dies. Unlike a will, it’s also an entity that holds the assets while the owner is alive. The primary aim of a living trust is to avoid probate, a court process that can take months and even years if the estate is especially complicated.

The grantor appoints a trustee to manage the assets in the trust. People commonly name themselves as the trustee, but when they do, they also need to name a successor trustee for when they die. If the distribution of your property is not to happen immediately after your death or if the beneficiary is disabled, the trustee will manage the assets for as long as necessary.

You can fund a trust with various types of assets and physical property including:

One thing you can’t transfer to a revocable living trust is a traditional individual retirement account (IRA). By law, an IRA must be in the name of a person. You can consult with a lawyer on what happens to any IRA account that you may have.

How Much Does It Cost to Create a Living Trust in Delaware?

The largest expense when creating a living trust is attorney fees. Depending on the lawyer, they can run to $1,000 and beyond. If you want to keep costs down, there are online programs available for less than $100. Keep in mind, though, that you can run into plenty of pitfalls with DIY estate planning. The other major costs are related to retitling assets, which can include transfer taxes, deed preparation fees and county recording fees.

Why Get a Living Trust in Delaware?

You can easily set up a living trust in the state of Delaware.

One of the biggest benefits offered by a living trust is bypassing probate. This is the process by which a court determines how to treat your estate based on its interpretation of your will. Delaware has not enacted a Uniform Probate Code, so the process is considered lengthy. And it can end up being expensive, as lawyer fees add up. That said, the state has a simplified probate process for estates valued below $30,000.

Who Should Get a Living Trust in Delaware ?

Living trusts are not just for the wealthy. You should consider a Delaware living trust if your net worth is more than $30,000, if you own property in other states or if you simply want your estate to avoid the interference of the court.

Additionally, trusts are a good choice for people who want to provide for someone with special needs or who want to delay the distribution of their estate until heirs are, say, 30. (With wills, estates are distributed once probate ends.) A living trust is also recommended if you are disinheriting someone or spreading your wealth in an unequal way. (A living trust is harder to contest than a will.)

Living Trusts vs. Wills

Wills are always recommended, whether you have a living trust or not. The two combined can ensure that all of your estate is distributed as you wish since you’ll likely leave something out of your trust. A will also offer some benefits a living trust won’t. For instance, you can state your preferred guardians for minor children and name an executor through your will. You can also use it to express how you want debt and taxes to be handled.

The table below offers some information about what you can and can’t do with these two estate planning tools.

Living Trusts vs. Wills

Living TrustsWills
Names a property beneficiaryYesYes
Allows revisions to be madeDepends on typeYes
Avoids probate courtYesNo
Requires a notaryYesNo
Names guardians for childrenNoYes
Names an executorNoYes
Requires witnessesNoYes

Living Trusts and Taxes in Delaware

The Delaware estate tax was repealed on January 1, 2018, and the state has no inheritance tax either. At the federal level, a living trust may help only very large estates, since the federal estate tax (also called the death tax) has an exemption of $11.4 million for individuals and $22.8 million for married couples. (These exemptions, set by the Trump Tax Plan, are scheduled to expire in 2025, though. So it’s a good idea to keep an eye on them.)

The Bottom Line

A Delaware living trust should be a part of your overall estate planning strategy.

A living trust will help your heirs avoid probate in Delaware, which has not adopted the Uniform Probate Code, if you have a large or otherwise complicated estate. If the value of your estate is less than $30,000, however, a living trust is unnecessary, since there is a simplified process for small estates. For more help with your estate planning, consider hiring a qualified financial advisor and discuss all the types of trusts you have access to.

Estate Planning Tips

  • A living trust is just one type of estate planning tool. To get comprehensive help with your entire estate you may want to consider working with a financial advisor. If you don’t currently have a financial advisor, finding one doesn’t have to be hard. SmartAsset’s free tool matches you with up to three financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
  • You can also check out our vetted list of financial advisors who serve Delaware by seeing which firms we rank at the top.
  • Review your estate plan every few years. You should also update it whenever you experience a life-changing event (such as the birth of a child – or grandchild) or when Congress makes any changes to estate tax law. This will ensure that your plan reflects your wishes and goals.

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