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So, Mrs. Tanner and myself have a trust in place, as we have for the last ten years or so, not that we are wealthy, but just as a matter of course to not subject our boys to suffer through the probate process. We don’t own businesses, we don’t have art collections or really anything of value except the house. Pretty plain vanilla stuff. We’ve been meaning to update a few items as circumstances have changed. Basically the boys are not boys anymore, but young men in their 20’s. My questions are: 1) The trust was created in a different state than the one we now live in. Do we need to rewrite the trust, or can it be updated as is? Any pros or cons? 2) As far as an update, can any competent lawyer make these changes or does one need to go with one that “specializes” in trusts, wills, etc.? How does one vet that out? Are large firms better than small ones? 3) Since we are making changes, what suggestions does the hive have to ensure simplicity, yet thoroughness? One example I read was to call out that the executor has the rights to access electronic and social media accounts. Again, thanks in advance for the help! | ||
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Just because you can, doesn't mean you should |
Not a lawyer so take it for what it's worth. Most of these questions are state specific. Depends on what kind of money your talking about. Blended family or simple situation and happy cooperative siblings? Yes, I know that can change when money is thrown into the mix. Where I live, a trust isn't desirable or necessary in many cases, and just adds a layer of complexity. Titling of major assets like real estate, vehicles and bank/retirement accounts can make it pass without probate. Sitting down and talking to any potential beneficiaries beforehand with all concerned in the room is helpful so no one should have any doubt who or why a decision was made. Beyond that we'll have to wait until someone with more expertise chimes in. ___________________________ Avoid buying ChiCom/CCP products whenever possible. | |||
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No good deed goes unpunished |
If the trust is valid under the state law where it was established, another state should honor it. You can do an amendment to the trust to make minor or moderate changes. A "rewrite" of the entire trust is called a restatement. A restatement is an entirely new document that replaces the original trust agreement, but keeps the same name and date of the original trust. You should use a lawyer who drafts and understands trusts. I typically won't amend a trust that another lawyer has drafted, especially a trust from another state. In cases where I didn't do the original trust, I restate the entire thing. Other lawyers may not mind working behind someone else. The pros and cons depend on what your goals are. Depending on the state(s) involved, leaving assets in trust to your boys can give them some powerful asset protection. You should update your financial and health care powers of attorney. Those are state specific documents. Your new state should honor your old documents, but the reality is that you may find it difficult to get an out of state financial power of attorney honored. | |||
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Eschew Obfuscation |
My view (I'm a retired atty) is that if you don't have complicated assets (no businesses, rental properties, multiple homes, or complicated assets) and don't anticipate problems amongst surviving spouse and/or kids, just get a copy of Willmaker and do it yourself. _____________________________________________________________________ “One of the common failings among honorable people is a failure to appreciate how thoroughly dishonorable some other people can be, and how dangerous it is to trust them.” – Thomas Sowell | |||
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Member |
I highly recommend all of these documents. I've spent the last 8 months dealing with the passing of my step father, becoming the Agent and trustee of my mother and my uncle both incapacitated by dementia. In other words, I had to step in and take over everything including their care and everything else, two states away. In the process, I've had to use the trust documents, the POA's, the Heath Care Directives and now the Will in the case of my Uncle. Without these documents already in place, my task would have been exponentially harder than it became/has become. Even with these documents, I still have had to retain a local attorney to wade though California law and ever changing circumstances of my mother and uncle. I'm now getting my own affairs in order. | |||
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thin skin can't win |
Good advice and there will be more I’m sure. My addition to that would be to take great care to ensure that you don’t “accidentally” set up some account in your individual names or not have transferred it over into the name of the trust. It would be a shame to go to the trouble and expense to take the steps you have, that can create a headache almost as large as if you hadn’t. In my experience, my mother had done something similar to what you described. Unfortunately one of the investment accounts she directed to retitle her account to the trust failed to do so. She didn’t notice that, nor did anyone else until after she had passed away. So, we had to incur the expense and hassle of going to through probate just for that one single account. It was a small enough balance where we almost chose not to, but ultimately the cost was less than the value so we went ahead. What a PITA. You only have integrity once. - imprezaguy02 | |||
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Left-Handed, NOT Left-Winged! |
Talk to an estate planning attorney. There are different kinds of trusts so it depends on how the first trust was written. There are trusts that are truly separate legal entities with their own tax ID number that aare managed like a separate "person". The trust pays its own taxes under the tax ID. These are more complicated and set up for various reasons. Then there are trusts that are based on the social security number of the "owner" and managed as an extension of that person. These are less complicated and typically used to avoid probate. My mom has a social security trust written in Illinois a long time ago, that we amended in Indiana last year with new POA's and a new Will. This was the simplest thing to do. | |||
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