Category Archives: Trusts

Estate Planning for Almost Here Babies

Hi Liza,
I am about to create my Will and Living Trust.  My son has two sons and his wife is pregnant with twin girls.  I would like to know if I can name the twins in my Will/Trust now although they are not due to be born until December? I’ve written Wills that name children soon-to-be born. You could say that you want to benefit all of your son’s children, including the twins girls due in December. Or you could just say all of the children of your son that are alive at your death (which, unless you die before December would certainly include the new twins). Good luck!

Trusts: Revocable v. Irrevocable

Hi Liza,  Please explain/define the differences between trusts. Specifically, what is a living trust, a revocable trust, and an irrevocable trust. Advantages? Disadvantages?  Here’s my answer for you: a LIVING trust and a REVOCABLE trust are almost always the same thing. Both are ways to describe a trust that holds assets during the lifetime of the person who established the trust ( the “Grantor”)  for that person’s lifetime benefit (the Grantor is also the trust “Beneficiary”). It’s a  living’ trust because it is established during the Grantor’s lifetime. It is revocable because during the Grantor’s lifetime they can revoke it any time they want to. A revocable living trust’s purpose is simply to avoid a probate of the trust’s assets after the Grantor dies. Instead of having to go through a court supervised probate proceeding (which costs money and takes time), the person named to manage the trust after the Grantor (the “Successor Trustee”) simply settles the estate as the trust directs (this also can cost money and certainly takes time, but usually less of both).

An IRREVOCABLE trust is a trust that can’t be amended or revoked once it is established. These are usually used when a person wants to give away money or other assets to another person, subject to certain terms that they don’t want to be changed. Once the gift is made to the trust, that person no longer owns those assets, which can be a tax advantage.  But such a trust can’t be changed without going to court and they can’t get the gift back, ever. Sorry to get long-winded on you, but my answer wouldn’t be complete without letting you know that after the Grantor of a revocable trust dies, that trust then becomes an irrevocable trust, because no one can change it’s terms after the Grantor’s death.

How Much Should A Living Trust Cost?

Dear Liza: What is a reasonable amount to pay for a lawyer to do a living trust? Here’s my rule of thumb: you should probably start by assuming that the whole process will take about 10 hours of an attorney’s time. This should include a face-to-face initial meeting to thoroughly discuss your goals, your family situation, and your finanicial assets.  The lawyer should then draft your documents, you should review them, and there should be some back-and-forth over the drafts. Some lawyers do this in a second meeting, some do it by phone or by email. Ultimately, though, you should finalize the language and get back together to sign the documents. Included in my estimate, by the way, is that the attorney will also be preparing a Will, a Durable Power of Attorney for finance, a Health Care Directive, and assist you in transferring your real property into the trust. If you are single, you can reduce the estimate to 8 hours. Since lawyer’s rates vary a lot around the country, just take my ten hours and translate that into the going rate where you live: in Northern California, where I practice, you can spend between $3000 and $5000, but in other parts of the country in could be much less.

Of course, that’s my estimate for something rather straight forward. If you need to do any planning for a child with special needs, or for parents, or have a second marriage, or have complicated assets, it can take longer.

Do IRA’s go through probate?

Dear Liza: My sister has an IRA naming her three children as beneficiaries. They are all adults. My sister is quite ill and she doesn’t have a living trust. Will her IRA have to go through probate before it can be transferred to her children? That is such a great question–for two reasons. First, it’s so important: for many people, a retirement account is the largest asset that they will be leaving to their children. Second, I have a really clear answer, not one of those, “well-it’s-complicated” kind of blog posts. NO, IRA’S DO NOT GO THROUGH PROBATE IF THEY HAVE NAMED BENEFICIARIES. NEITHER DO LIFE INSURANCE PROCEEDS.  Probate was invented in merry old England to avoid fraud after a person died. Way back when, if the lord died, the evil nephew could easily steal the castle because no one was really looking out for the interest of the dead lord. Probate is about freezing the estate until the Will is proven valid, heirs are identified and contacted, debts are paid, and conflicts resolved.  At the end of the process, the assets are give to those named in the Will. But IRA’s, and other retirement accounts (such as Roth IRA’s, 401-K’s, 403-B’s, and the like) have named beneficiaries. The companies who administer these assets are contractually bound to give these assets to the named beneficiaries on those contracts. No possiblity of fraud; no probate.   If evil nephew Fred asks Vanguard to give him the IRA, Vanguard won’t, unless Fred is the named beneficiary for that account. One caveat: if you named ‘my estate’ as the beneficiary, that would require a probate of retirement assets, so don’t do that.

Surgery and Procrastination

So, I have a weird job in that I, literally, talk to people about getting their estate plans up to date many times a week. And I’ve done this for TEN YEARS. Over and over, people tell me that they’ve been procrastinating and feel badly that they haven’t gotten things taken care of. And I listen. In fact, my first question is almost always what prompted my clients to finally make the appointment and get the job done. It’s almost always one of these four things:

  • An upcoming trip.
  • A scary diagnosis or test.
  • A death in the family or a death of a friend.
  • The birth of a child.

Let’s face it, these are the things that get our attention in a deep way. They make mortality real and make us want to do what we can to get things in order. Until something like this grabs us, there are always 200 other ‘important’ things to capture our time and energy.

And here’s my confession: despite my professional focus on estate planning, my family’s estate plan has been out of date for at least four years! Really. Our guardian got divorced; her kids grew up to not get along with mine; our financial situation changed drastically. Every single thing about the plan wouldn’t work.

And guess what? Do you know what made me fix it? It certainly wasn’t because I knew we should. It was reasons one and two on the above list. Not only had we planned our first family trip that required airplane travel to a distant and slightly tropical local, but the week we got back my husband faced major spine surgery. Nothing like filling out hospital admittance papers to get those mortality juices flowing.

So, we redid our plan. We changed our guardians. We simplified our trust for tax planning. We updated our Durable Powers of Attorney and our Advance Health Care Directives. And it felt GREAT to finally fix it. Next up: the earthquake kit, also woefully out of date.

Believe me, I get it if you can’t focus on estate planning right this second. But, please, next time life reaches out and grabs your attention, jump on it. You’ll feel better, I can almost promise.

 

Did My Mom Have a Valid Trust?

Dear Liza, My mother passed away last year. She had a living trust prepared in January of that year by an online provider of legal forms. Before she died, she had the abstract of trust and bill of transfer listing all properties to be transferred into her trust signed and notarized which I have a copy of. She did not have the declaration of trust signed or if she did I cannot find a copy. Is the living trust still valid?

I am hoping that you can find that trust. It would make your job a lot easier. Have you checked with the online provider to see if they have a copy of what she prepared with them? Because if all that you can find is the trust abstract, which is usually an excerpt listing the trustees and their powers, you’d have to try and make an argument that the summary itself is a valid trust under state law, and I’m not too sure that would work. The requirements vary by state, but in general, a trust must state the Grantor’s intention to create a trust; identify the property held by the trust; state the trust’s purpose, and identify a beneficiary (these last two are probably not in that summary). (The Grantor must also have the legal capacity to make such a document, but that’s not the issue here.)

I would check with a trust and estate lawyer in your state to see if there’s any state law to support your argument that the excerpt itself, plus the document listing the properties to be transferred, could somehow be construed to create a constructive trust or somehow avoid probate via a court petition to that effect.

While I love providing people with information and tools to get legal work done on their own (obviously, since I write for Nolo) — this kind of story just kills me. I’ve seen it too many times — without guidance, people forget to sign the right thing, or do the required follow-up. Estate planning doesn’t have to be complicated, but it does have to be done right. If you can’t make the trust valid, and your mother didn’t prepare a Will, then you’ll have to get her estate probated and her property will pass via your state’s intestacy laws (which state who gets what if there is no Will).

Does a Living Trust protect against creditors?

Dear Liza: My wife is in the middle of her medical residency.  With the risk of future lawsuits, do Living Trusts or other vehicles help protect family assets from Malpractice or other law suits?

Nope. Sorry. A revocable living trust does not protect assets from creditors. A revocable trust’s purpose is to provide tax planning at the death of the first spouse, and probate avoidance at the death of the second. Both are worthy goals and I do not in any way feel that I spend my working life selling snake oil. But during your lifetimes, those assets are fully reachable by creditors. Asset protection trusts are different beasts entirely. There’s a large industry of lawyers out there, figuring out clever ways to protect doctors from law suits, but they are not estate planners, as a rule.

When does it make sense to do a Living Trust?

Dear Liza: We are a young family with significant debt  and very little in tangible assets (we completely own just one car — we rent our house).  However, my wife and I have plans of significantly decreasing debt and increasing assets/wealth in the future.  Is it worth the time/costs to create a Living Trust now?  Or should we wait until we actually have assets?  Does it matter?

Because you have a young child, what you really need right now is a Will, naming guardians for your kids and putting a plan in place to manage assets for those kids until they grow up. If you don’t own a house right now, or more than 100K in the bank, I’d say, wait on the trust. The purpose of a trust is to transfer what you’ve got to your kids efficiently and inexpensively. But if you’ve really got nothing to transfer, the trust doesn’t buy you much at the moment. You could certainly create a living trust now, in anticipation of your future wealth, but if there’s nothing to fund that trust with at the moment, I’d say hold off. But do get that Will done. :)