- posted: May 20, 2020
The French author, Alexander Dumas’s main character’s motto, in The Three Musketeers, was “All for One and One for All”. It could be argued that in the Age of Covid 19 we are also being told to Stand Together as 1…as We Stand 6 Feet Apart. We should all consider encouraging our family and friends to now get their financial house in order …as life is a little slower than normal. Consider Contacting a lawyer to discuss a Will and Trust.
A living trust is a legal document that, just like a will, contains your instruction for what you want to happen to your assets when you die. However, unlike a will, a living trust avoids probate when you die. It can control all your assets and prevent the court from controlling your assets if you become incapacitated.
A Living Trust avoids probate and prevents court control of assets at incapacity. This is because when you set up a living trust, you transfer (at that time) the assets from your name to the name of YOUR TRUST, which of course you control.
Legally, you are no longer the owner of anything, but do not panic because everything now belongs to YOUR trust. Thus there is nothing for the courts to control when you die or become incapacitated. This is an easy concept that keeps you and your family out of court.
You do not lose control of your assets as you keep full control. As the trustee of your trust, you can do anything you could do before such as buying/selling assets, changing or even cancelling your trust etc. That is why it is called a REVOCABLE LIVING TRUST. YOU CAN REVOKE IT DURING YOUR LIFETIME.
In addition you even file the same tax returns. Nothing changes but the names on the titles!!! All this takes less time than you would think...but it is the type of thing you can do now as we wait out Covid 19, or have the courts do so at your death. The old adage I quote kicks in yet again....People don’t plan to fail, they fail to plan. So look into this NOW.
Some clients ask whether joint ownership can avoid probate too? Unfortunately that is usually not the case. Using joint ownership usually just postpones probate. With most jointly owned assets, when one owner dies, full ownership does transfer to the surviving owner without probate. But if the owner dies without adding a new joint owner, or if both owners die at the same time, the asset must be probated before it can go to the heirs.
Some clients consider using a corporate trustee. Though you can decide to be the trustee of your trust, some people select a corporate trustee which is often a bank or trust company to act as trustee or co- trustee now. This is often because you do not have the time, ability or desire to manage you own trust. This is also true if one spouse is ill. The corporate trustees are experienced investment managers and they are objective and reliable. Surprisingly their fees are usually very reasonable.
A Durable Power of Attorney lets you name someone to manage your financial affairs if you are unable to do so. However, many financial institutions will not honor one unless it is on THEIR OWN FORM. Sometimes it works too well by giving someone a blank check to do whatever they want with your assets when that was not your intent. It can however, be very effective when used in concert with a Living Trust. Of course, it can be risky when used alone.
Clearly this is a confusing decision for the average lay person so do yourself a favor and call a lawyer now for an explanation. Don’t wait for the courts to make that decision for you.
If you have any questions regarding this column or ideas for future columns please contact Dale Gribow at 760-837-7500 or [email protected]
Remember unless you want your estate plan to kick in right away... when you drink don’t get behind the wheel and get in an auto accident (whether it is your fault or not) or get arrested for a DUI…I don’t need the extra business....and you do not want your estate planning to take affect TOO SOON.