Estate Planning Practice Blog

Living Trusts Are Revocable And Not An Asset Protection Tool

It comes up all the time.

A call comes in from a potential client: "I need to set up a living trust now to protect my assets. "

Generally, if the person (called the settlor) who created the living trust and transfers property to this living trust has retained the right to revoke the living trust then he also retains an interest in the trust assets. There is no protection from outside entities or creditors regarding what has been transferred into the living trust.

In other words, a living trust is known as a revocable trust.  As such, living trusts are not considered a vehicle for asset protection.  A living trust is used mainly to allow assets to transfer at death without going through probate or to allow a co-trustee or successor trustee manage assets in the event of incapacity of the settlor of the trust.

Consult with an estate planning attorney to learn more about living trusts. And if you have asset protection questions, be sure to mention your questions and concerns with your attorney as there may be other options out there based on your situation.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Putting Bank Accounts in Your Living Trust

After you have established your Living Trust, one of the more important things you will need to do is fund your trust with your assets including bank accounts. This post only deals with bank accounts and not other assets that should also be included in a Living Trust. 

Once your Living Trust is set up, it is your job to contact all financial institutions where you have accounts to transfer those accounts to your trust. Here is a run down of what to expect.

1. Discuss with your attorney which accounts should be in your Living Trust. Sometimes not all financial accounts should be in your Living Trust.

2. For the accounts you have identified as belonging to your Living Trust, contact the financial institution and request that they re-title your existing account to your Living Trust.

3. Most financial institutions will want to see or keep a copy of the Living Trust on file. You can provide them with a Certification of Trust or a copy of the Living Trust -- depending on your comfort level.  Under California law they are supposed to honor a Certification of Trust in lieu of seeing the actual Living Trust document, but sometimes it is just easier to give the bank officer what they ask for rather than trying to drive home the legalities of the CA Probate Code Section 18100.5 as it relates to the Certification of Trust.

4. The account title should be updated in a manner that reflects how you have set up your Living Trust. For instance, "John Smith, Trustee of the John Smith Revocable Trust dated July 1, 2007."

5.  Not all banks will re-title accounts in a Living Trust. Some internet banks do not offer this option so be sure to check with the bank if you already have a Living Trust and plan to open a new account.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Trust Administration After Someone Dies

Living Trusts require administration after the death of a settlor (the person who created the trust).

Upon a person's death -- there are many steps that need to be taken in accordance to California laws to properly administer their Living Trust:

To start, California Probate Code Section 16061.7 requires notification by trustee to beneficiaries/heirs of the person who passed away as the first step.  See our blog post on this notice requirement.

California also requires a trustee to give notice of death to the Department of Health Services as it relates to Medi-Cal benefits. This notice allows the Department of Health Services to determine whether the decedent was receiving Medi-Cal benefits and if there is any right by the state for reimbursement.

Real property assets held in trust need to have titled cleared. An Affidavit of Death of Trustee is commonly filed along with other Trust Transfer Deeds to properly distribute the property as directed by the Living Trust.

Trust assets need to be appraised and otherwise handled.

And tax issues need to be considered and handled with the assistance of a qualified CPA or accountant experienced in estate matters.

And, lastly, it is prudent to wrap up the administration of a Living Trust with an agreement signed by the trustee and all of the beneficiaries to protect the parties.

This is a quick run down of the trust administration issues and is not meant to be all inclusive. Please consult with an attorney for specific advice regarding your trust administration matter.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Final Dispositions Cause Trust Litigation More Than The Boilerplate Language.

Trusts are not protected from litigation. Really, anyone can sue anyone for anything (just about). Sometimes you need an attorney to defend you from a lawsuit that should not have been filed. What does this mean about Living Trusts? And where am I going with this post?

Our firm handles many trust litigation matters.  We often represent the trustee of a trust that has been sued by a disgruntled heir.

People seem to think that the terms of the trust is what has caused the lawsuit. For example, the inclusion of a certain probate code language or some other boilerplate language some how makes it more prone to an attack.

Sadly, this is not the case. People attack Living Trusts because they have either been omitted or feel slighted in how you want to handle the final disposition of your assets. Think they should have gotten more.

You have more control than you think over whether a lawsuit happens after you die if you create a Living Trust to dispose of your assets.

Some things you could do to make your Living Trust more susceptible to a lawsuit (these are things not to do or if you are going to do -- think carefully and discuss with your attorney at length):

1. Disinherit a child outright
2. Draft your Living Trust shortly before you die
3. Draft your Living Trust at the insistence of a family member who gets more than the others
4. Favor one child over another
5. Name your children to act as co-trustees and if they don't agree... they go to court
6. Execute your Living Trust while incapacitated
7. Favoring a new spouse over your children from a former relationship
8. Not giving anything to your children, but all to a charitable organization or church
9. Omitting your spouse when you are not separated or divorcing (there are state specific laws on drafting estate planning documents while divorcing)
10. Giving it all to your dog instead

I think you get the idea. It's generally not the terms of the Living Trust that causes lawsuits -- it is the parts that are drafted in accordance to your wishes that are more subject to an attack than anything.

This doesn't mean don't draft a Living Trust. Rather it means consult with your attorney, cover your bases and protect yourself. Your attorney may have good ideas of preserving your wishes and protecting your estate from an attack after you die.

No, No... Retirement Accounts Do Not Belong Your Living Trust.

One common mistake that people make when they have a spouse or children is to transfer their retirement accounts into their Living Trust. If your attorney suggests that you do this and you have a spouse or children who could survive you -- ask why they are recommending this.

It could be that your attorney is not experienced in estate planning and does not know what should or should not be titled into your Living Trust.

Generally, retirement accounts are not subject to probate because you can name beneficiaries. And by naming your spouse or children as beneficiaries, you are allowing them the most flexibility in dealing with transferring your retirement accounts when you die including the option to rollover the retirement account.

Otherwise naming your Living Trust as a beneficiary may have dire tax consequences to your beneficiaries if it remains held in your Living Trust when you die. Talk to your CPA or financial advisor for more details.

Mandatory Trust Allocations.

Ever hear of an A|B Trust? It is a living trust designed to preserve the estate tax exemption amount when the first spouse dies. Without getting into why one might have an A|B Trust, please know that if you *have* an A|B Trust already that when the first spouse dies, the surviving spouse is required to allocate or divide the existing trust assets according to the trust document.

Say the trust document requires that upon the first spouse's death that the trust assets be divided into Trust A and Trust B where Trust A is called the Survivor's Trust and Trust B is called the Exemption Trust. Different trusts call these sub-Trusts different names, but they are the same.

This means following a host of procedures and legal maneuvers to ensure that the  original Trust is  divided into two sub-Trusts. This means that Trust A belongs to the surviving spouse and Trust B belongs to the spouse who died. Trust A is still revocable, but Trust B isn't.  This allocation is mandatory when you read the existing trust document.

It's a complicated thing. This allocation. This division. This A|B Trust. It's hard to explain in a post. The best things to understand are the following:

1. If your estate is worth less than $2 million, which is the current federal estate tax exemption amount, and you have an A|B Trust *and* you and your spouse are alive and well -- it is a good idea to talk to your attorney about restating and amending this Trust to get rid of the A|B component and draft a disclaimer trust that doesn't require this split upon the death of the first spouse. There are caveats though because an A|B Trust works well for blended families.

2. If you have an A|B Trust and have lost your spouse, please see your attorney to determine if an allocation is required and complete the allocation process.

3. If you don't understand how this works, and this post isn't designed to explain it to you, please see your attorney for an in-depth conversation of how these trusts work so you understand.

4. The trust document controls the terms of the Trust and how it works. If you can't sleep, read your Trust and see if it makes sense. Despite the legalese, if you read it -- it just might make sense and you will get it. But in reading it, if you notice something that seems wrong, should be changed or is a mistake outright... see your attorney right away to make the necessary amendments where allowed.

As always, when in doubt, consult with your estate planning attorney.

Tell Me In 2 Sentences Why I Should Have a Trust.

In an estate planning signing this week, an inquisitive client asked me before he signed his trust -- tell me again in two sentences why I need this.

It was an interesting inquiry.

He understood why, but wanted it boiled down in concrete terms.

My reply was rather long winded. But I did boil it down to two sentences initially.

My "on the spot" two sentence reply: In California, a Trust is important to avoid probate. Probate proceedings in California are costly in terms of attorneys fees and emotional costs to your loved ones.

What would be your two sentence reply? Post a comment!

How Many Pages Are In A Living Trust?

After meeting with some wonderful clients a few weeks ago, I was asked a slew of questions to see if they wanted to hire our firm to draw up their estate plan. They had a list of questions to ask an estate planning attorney. So they asked me some questions. One that I remember is how many pages is your Living Trust?

It was an interesting question. My answer was it depends on the kind of trust you have and whether we are including trust language for minors, separate share trusts or other special distribution provisions.

A trust for a single person was 29 pages for one I did a few weeks ago. A trust for a married couple with tax saving provisions -- called a three-way marital in attorney lingo -- that I did a month ago was 43 pages.

I wasn't insulted by the question, but I wasn't sure what it measured. So I added to my answer that our firm and our estate planning attorneys are not a trust mill. We don't turn them out by the day. Typically I prepare one estate plan a week with a three to four week turnaround from start to finish if this is what the client wants or we can take even more time if they need to gather more information and think about things after our initial meeting. In between drafting trusts, I handle a variety of probate and other litigation tasks on a day to day basis. We also handle other issues as well such as trust administration and conservatorships.

What Lawyers Offer - Education, Experience and Knowledge

If you are thinking about doing your own estate planning documents -- think about this, are you already an expert in a certain area that you would be aghast if someone were to take on your skill themselves?

Say, are you a professional hair colorist? A skilled musical instrument repair person? A certified public accountant? The hair colorist, instrument repair person and CPA would all say you would be crazy to do your own hair color, fix your horn and file an estate tax return. 

As an estate planning attorney, I say that it would not be wise for you to do your own estate planning.

One of the biggest mistakes folks make at home is failing to fund their trust. Preparing trust transfer deeds and recording them with the county requires a very specialized how-to knowledge, that while I can do in my sleep, it would take you a few hours to master. And then you'd have to complete a PCOR. If you don't know what that is, then point taken.

Think of paying lawyers for estate planning as paying for knowledge and experience. Sure, the education factors in as well. Also, know that when you pay for estate planning you are not paying for the paper or the document production -- you are paying for our good education + bad experience, which as one lawyer put it on a listserve--  makes for great knowledge!

Never Make Minors a Beneficiary for Life Insurance Policies.

We have been meaning to educate everyone about this very important nuance with regards to minor children and life insurance policies. It's hard to explain and here's the best explanation we've read so far:

Suze Orman, the excellent, down to earth financial columnist from O, The Oprah Magazine has articulated this very clearly in the May 2007 issue:

"Never make an underage child the beneficiary of your life insurance policy. If you die, the insurer will force your relatives into court to get someone appointed as guardian of the estate (this is separate from any guardian you may have specified in your will to care for your children).

That's going to take time and money, and your heirs will still have a major headache: The court may demand that the funds be placed in a "blocked" account that requires approval for withdrawals. Everytime your children's guardian needs money, she'll have to go to court (that usually means hiring a lawyer and spending more cash) to request it.

Again, the solution is to make your trust the beneficiary. Insurers will happily transfer the money to the trust, and the distribution of assets will be handled exactly as you specified. That's going to be a serious benefit for your heirs."

She could not have said it any clearer. It is important to have a Living Trust and name the trust as the beneficiary for your life insurance policies. It's the easiest and most cost-effective way to protect your children in case Mom or Dad pass away.