FREQUENTLY ASKED QUESTIONS
What should I bring to my initial consultation?
Q: I am interested in taking advantage of the free initial consultation, what should I bring to the appointment?
A: It is not necessary to bring detailed information on your assets or family members to the initial consultation. That information can be provided later if you decide to work with us. It is helpful if you bring to the initial consultation any existing estate planning documents you may have, including your trust agreement, will, power of attorney and healthcare documents. In addition, it is helpful if you know generally what your assets consist of and have an idea of their approximate value. It is not necessary to bring bank statements, investment account statements, property deeds or other detailed information on your assets to the initial meeting. It is helpful if you review the workshop handout and think about what you would like to accomplish in your estate plan before you attend the meeting.
Q: What is the annual fee for a trust?
A: Generally, there is no annual fee associated with maintaining a trust. Legal fees will be incurred if the trust is amended. There are also may be legal fees associated with the administration of the trust upon the death of the trustor.
Q: Does a revocable living trust provide asset protection?
A: During the lifetime of both spouses there is no asset protection provided by a revocable living trust. However, if properly drafted, there can be some asset protection for the survivor after the first spouse dies. The trust can also be created to provide creditor protection for other trust beneficiaries after the death of one or both spouses.
Q: What is a guardianship or conservatorship?
A: Guardianships and conservatorships are court-supervised proceedings that name an individual or entity to manage the personal or legal affairs of an incapacitated person. A conservator is put in charge of the incapacitated person's financial affairs, and will often pay the bills, preserve the assets and manage the real estate of the incapacitated person. A guardian is usually responsible for making healthcare decisions for the incapacitated person and determining where the incapacitated person will live. The guardianship of a minor is a proceeding that names the person or persons responsible for providing care and management of the personal affairs of the minor.
Q: What will happen to property if an individual dies without a will or trust?
A: If an individual dies without a will or trust, state law determines who will inherit. This distribution plan can be found in the intestacy statues of the applicable state.
Q: What if real estate is titled in the name of both parent and child?
A: This is often a disadvantageous way to plan an estate. The problem with titling real estate into the name of both the parent and child is that, while it will avoid probate, creditors of the child may be able to reach the property. It may also create a taxable gift when none is expected and may not be consistent with the ultimate desired distribution.
Q: What is probate?
A: Probate is the court procedure used to change title to assets from the name of an individual who has passed away into the name of the living beneficiaries. It allows the creditors of a decedent to file claims to collect their debts and allows interested parties who have a complaint regarding the deceased to file their complaint (a will contest). Probate is a public proceeding.
Q: Can probate be avoided?
A: Probate can often be avoided with careful planning. There are a number of techniques for doing so, which can be used alone or in combination.
Q: Do property taxes change if a trust is created?
A: Generally, property taxes remain the same when real estate is transferred into a revocable trust, although laws vary from state to state and county to county. A transfer to an irrevocable trust can result in a change in property taxes.
Q: Can someone contest a trust like breaking or contesting a will?
A: Anyone can hire an attorney to question how legal affairs have been arranged. So, in theory, anyone can attempt to contest a trust. In practice, however, it is more difficult to contest a trust than to contest a will. When a will is probated, an interested party can join the probate court proceedings and contest the will at that time. In contrast, someone who wants to contest a trust must take the initiative to begin his or her own lawsuit and will incur court and attorney’s fees.
Q: Who is the trustee of the Living Trust?
A: While the trustor is alive, he or she usually acts as trustee. For married couples, either one or both spouses may act as trustee or co-trustees. The successor trustee is an individual or institution that is designated to be in charge of the trust upon the disability or death of the trustor.
Q: What is the trust name?
A: Our practice is to name the trust as follows: [trustee’s name] as trustee of the [trustor’s last name] living trust dated [date], and any amendments thereto. An example would be Bill and Mary Smith as co-trustees of the Smith Living Trust dated January 1, 2017, and any amendments thereto.
Q: Why is a pour over will necessary if a living trust is created?
A: A pour over will protects against intestacy in the event any assets have not been transferred into the trust at the death of the settlor/owner. Its function is to pour any assets left out of the trust into it so they are ultimately distributed according to the terms of the trust. A pour over will is also used to name a guardian for any minor children.
Q: How is a trust revoked?
A: Our experience has been that trusts are rarely revoked. However, there are situations where it does occur, primarily in event of a divorce. A brief written agreement is prepared, indicating that the trust has been revoked. The assets are removed and put back in the name of the individuals, who are free to establish new trusts if they so desire.
Q: If real estate is transferred to a trust can the bank call the loan?
A: Enacted as part of the Garn-St. German Depository Institutions Act of 1982 (P.L. 97-320; 96 Stat 1501) a due-on-sale clause cannot be enforced on a transfer into an intervivos trust on which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property. This exemption applies to residential real property containing less than five dwelling units. [12 USC Sec. 1701j-3(d)] The regulations list that the borrower in this type of situation must remain the beneficiary and occupant of the property. [12 CFR 591.5(b)(vi)] However, occupancy is not defined.
Q: Will an individual still have control over their property if he or she establishes a living trust?
A: Absolutely! While the individual is alive and mentally competent, he or she has complete control over the property. He or she can buy, sell, improve, spend, change investments, or give away property just as he or she could without a trust.
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