Category Wills and Trusts

bomhoff law

Death Deal: Will or Revocable Living Trust?

No one wants to think about death, much less plan for the aftermath. But since is the one most inevitable event in our lives, don’t we owe it to those who love us to make the burden easier for them to bear? That’s what “estate planning” is all about. And it isn’t just for the wealthy.

What if something happened to you tomorrow? Would your loved ones know about all your assets and how they should be distributed? Even if it doesn’t involve a lot of money, your actions now can save a lot of aggravation on top of the heartbreak.

Here are some basics to think about — before you start to plan with an attorney. There are two issues about which you must make some important decisions: peopleand process.

The People Issue: Before deciding on the “form” of your estate plan (will vs. revocable living trust), you need to think about some people issues. You may start by thinking of the list of “who should get what.” They will be your beneficiaries – the people or charities who get the stuff or money you leave behind.

If you have a life insurance policy, your named beneficiar(ies) will get the proceeds. Similarly, if you have an IRA or 40l(k) retirement plan, the beneficiary you named with the plan custodian will get all the assets. But for the rest of your assets the probate court in your state will decide how they will be distributed and to whom – unless you give specific instructions in the form of a legal document, not just a handwritten note.

If you hold title to your house in joint name with rights of survivorship, then your co-owner will automatically get the property. Otherwise, you need to name someone to receive the asset. (And remember that joint tenancy exposes your assets to lawsuits against your co-tenant, as well as limiting options for the property if you become incapacitated. So joint tenancy is not a substitute for an estate plan.)

If you have minor children, you must name a trustee for those assets you want them to receive — whether property, money, or life insurance proceeds. Otherwise a judge will do it for you.

Thinking about who gets what is the first step – but not the only “people” issue. Equally, or more important, is the issue of who you trust to carry out your wishes for your distributions. That person will be the “executor” of your will – or the “successor trustee” of your living trust.

And since you will also be creating two more important documents – a healthcare power of attorney, and a “living will” (which gives your wishes about prolonging treatment at the end of your life), you’ll need trusted people to carry out those wishes when you cannot act on your own. They will not necessarily be the same people as the one you name to carry out the financial and legal issues of your estate.

Suddenly, you understand the importance of trusted adult children, true and competent friends who will likely outlive you, or an attorney who will do more than draw up the necessary documents. Peace of mind demands that you have at least one person you can trust to have your best interests at heart when you cannot act for yourself.

The “Process” of Your Estate Plan: You don’t have to be an estate planning expert to understand the two basic forms of estate planning. These two forms have nothing to do with estate taxes, which will apply only to estates well over $5 million (unless your state has a death tax at lower levels). This is all about how your assets are distributed, how much the process costs, and how long it takes.

If you make a simple will, it will have instructions for the distribution of your property. Your named executor will take your will to the probate court, for which the “estate” will pay a fee. And it could take months or longer for the court to order a distribution of the assets to your named beneficiaries.

However, if you create a Revocable Living Trust, you can avoid the time, expense, and very public probate process of distributing your assets – while getting exactly the same results as a will in giving instructions for distributions.

When you create this trust, you will be the original trustee (or you and your spouse), with complete power to make changes at any time. You name a successor trustee to act on your behalf if you cannot act for yourself. (One big advantage: if you have a stroke or dementia, your successor trustee does not have to go to court for permission to act on your behalf.)

Creating a Revocable Living Trust does no good unless you re-title your major assets – your house, your investment accounts, CDs, and other valuable assets – in the name of your trust. This is a simple process and it does not create a taxable event to change the name on the title, since you are still the controlling trustee. You can buy and sell these assets without any extra hassle, reporting applicable gains or losses on your personal tax return.

As part of your Revocable Living Trust you leave the same instructions as would be in your will, for distribution of your assets after your death. But your successor trustee distributes them directly to the people and causes you designate – without going through the court process of probate.

This is an overview – but you should definitely get professional help from an estate planning attorney in your state to make sure all state laws are followed and details considered. Estate planning is not a do-it-yourself project because by the time your mistakes are discovered you won’t be around to fix them! And that’s The Savage Truth.

Huffington Post

living trust bomhoff law

Living Trust management can change on disability

Living Trusts, when drafted properly by an experienced attorney, can provide a variety of solutions to your problem. In any Living Trust, there are three positions of authority: 1) The Grantor is the person who created the Trust, and has the legal right to modify or revoke the Trust; 2) The Trustee is the person who manages the Trust’s day to day business; and 3) The Beneficiary is the person who the whole structure is designed to support and assist.

Your father’s Trust named him to occupy all three of those roles. However, it also specified that should he die or become disabled, the role of Trustee should be passed to you. When you become Trustee, your sole task is to provide for and support the Beneficiary (your father) using the assets that he placed into the Trust. The role you seek to assume is detailed and time consuming, and as a caring daughter you are happy to take on the burden.

But you do not want to insult your father by insisting that he has become too confused or forgetful to manage his own financial affairs. How do you handle this situation?

The Trust should provide a clear definition of what it means to become disabled. When he signed the Trust, he agreed that if he matched that definition he would be treated as disabled. Solid Living Trusts should provide that a Beneficiary is considered disabled if 1) that Beneficiary realized he is becoming frail and signs a notarized statement agreeing that he is disabled; or 2) a licensed physician who provides care to the Beneficiary signs a notarized statement declaring that his patient has become too ill to manage his own financial affairs; or 3) a court rules that the Beneficiary is disabled.

Legally, you have four options. First, discuss the situation with your father in light of the agreement which he signed. He may agree to sign a declaration of disability.

But if your father is in that grey area of being capable one day yet forgetful the next, he may be insulted if you raise the issue of taking over Trust management. Hence, a second option is to discuss with him your desire to be a resource and to assistant to him during these difficult times. Ask him if he would consider, as the Trust’s Grantor, issuing a modification to the Trust adding you as a Cotrustee. As a Cotrustee, you would have complete authority to manage the Trust’s financial affairs for his benefit. He would still be listed as a Cotrustee as well, so he will not be surrendering any of his own powers. Rather, he will be gaining an assistant who can lift some of the management burden while he is having difficulties.

Third, if he is too ill to participate, then meet with his doctor to seek a written declaration of disability. You want to avoid the fourth option – court – whenever possible, focusing instead on the other approaches.

Once you become Trustee or Cotrustee, your first job is to be certain all of his assets are titled into the name of the Trust. Check all of his bank accounts, investments, real estate, auto titles, etc. Hopefully he has also named you as Agent in his Durable Power of Attorney, which gives you authority to act on his behalf to change ownership of his assets into the Trust. (If he has not signed a Durable Power of Attorney, he should do so while competent, at the same time he signs the Trust Amendment. He should also have a Will to support the Trust, and should have Advance Medical Directives).