All living trusts have at least one thing in common: avoidance of probate. Beyond that, living trust is not created equal. Let’s discuss some of the features of a real estate plan included in a well-drafted living trust.
A well-drafted living trust provides for the benefit of the settler who created the trust and their loved ones, without court oversight (such as conservatorship or probate), while incapacitated (before death) and at the time of death. manage the assets of Flexibility to deal with unforeseen circumstances is beneficial.
First, the trust must provide care for the settler and the settler’s loved ones if the settler is incapacitated.
If a settler becomes incapacitated, will the trust provide powers and instructions regarding the settler’s personal care? You can say whether you pay for home care services to help you. Whether or not the trustee will allow adult children to move in to take care of the settlers (rent free). Whether the trustee will pay for the settlers to live with their families or move them to a nursing home.
If the settler is incapacitated, does the trust contain powers and instructions to care for the settler’s dependents? You can say whether you want to pay all or part of Whether the trustee will continue to support adult children. and whether the trustee continues to care for the settler’s pets.
Second, the trust must provide for a considered disposition of the settler’s trust property upon the settler’s death.
Does the trust adequately address the varying needs and living circumstances of its beneficiaries? Well-drafted trusts often give the trustee the discretion to administer the trust based on future terms that exist at the time of administration. provide to
Does the trust provide the trustee with explicit instructions or discretion to use its own judgment to manage the inheritance of minor beneficiaries? manage the inheritance of the beneficiaries who receive; To manage the succession of a beneficiary who has serious creditor problems. Or manage the inheritance of beneficiaries who cannot control their assets.
Where relevant, the trust may indicate whether the inheritance of such beneficiary is subject to further (continuous) trust administration for part or all of its life. The trust also allows the trustee to manage the beneficiaries’ inheritance without distributing cash to the beneficiaries for the purchase of services and/or assets for the health, education, maintenance and support of the beneficiaries. may allow.
Does the trust provide an adequate contingency plan in the event that the nominated beneficiary does not survive? Does the trust appoint or account for alternate beneficiaries in the event that the beneficiary does not live to inherit? You must provide whether the alternate beneficiary receives the inheritance outright or with more trust.
Does the trust permit the appointment of alternate successor trustees in the event that all persons named in the trust fail to serve as trustees? provide a mechanism for appointing That is, a trust may allow beneficiaries to appoint trustees or may allow persons named in power to appoint trustees.
Does the trust contain a properly worded disinheritance and non-disputed clause, if relevant? A renunciation clause is especially important if the settlor has gifted nothing to the heirs. Consider a parent excluding one or more children as beneficiaries. Consider parents who distribute assets unequally among their children. Is there a no-challenge clause to discourage disadvantaged children from challenging the unequal distribution of property?
The above shows how a well-written living trust can avoid unexpected and unintended pitfalls. This is not legal advice. Please consult a lawyer. Dennis A. Fordham is a state bar certified specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, California. His contact details are Dennis@DennisFordhamLaw.com and 707-263-3235.
