I consider myself a trust attorney so I really do only trust based estate plans. First of all, we have the trust agreement where that outlines who is the grantor, the one creating the trust, who is the trustee, the person in charge and named to manage the assets of the trust, and who is the beneficiary, who gets to use and enjoy those assets. We will add in incapacity provisions, such as who is going to step in and take care of the grantor if they are no longer able to manage the assets on their own, administrative provisions allowing for the payment of trust expenses and the expenses related to the final illness, etc. We will have some distribution provisions regarding maybe a special needs beneficiary or whoever the beneficiaries are, whether we are going to stagger the distributions out over a period of years or we are just going to write checks after Mom and Dad pass away, which is called outright distribution.
We could also do a discretionary trust where we have given power and discretion to a trustee to decide when to make those distributions. With that trust, we would want a will which is called a pour-over will which essentially as a key provision says if there is anything else in my name when I pass away then you can title it to the name of my trust. Did I get a beneficiary designation? I’m making the trust the beneficiary of my assets. It’s kind of a cleanup or a catchall for anything that’s hanging out there and in that we might even add cremation or burial instructions. You can do some pre-planning and try to involve the local mortuary. For minor children, you can nominate guardians in that will. You will have some administrative provisions in allowing the executors to manage the assets if there was any sort of court proceedings or public process.
There can also be a financial power of attorney when you set up the trust because there could be assets in the trusts, but what about the non-trust assets like employment benefits, governmental benefits, retirement accounts, life insurance, etc. All of those things can be counseled in the financial power of attorney and they would also want the benefits of a HIPAA authorization. A personal property memorandum is where the client can list out their personal property items that they want to distribute over a period of time. Then there is a certification of the trust which they can take to the bank and have the bank re-title the accounts. We also do an assignment of personal property, which is our way of retitling all that tangible personal property.
One of the most important components of a trust based estate plan is the funding documents, the deeds for the homes or the vacation property into the trust or maybe its corporate documents, moving their documents into a corporation or an LLC into the trust.
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