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Do I Need A Living Trust?

1.     What is a revocable living trust?

2.     What can a revocable living trust do for me?

3.     Should everyone have a revocable living trust?

4.     How could a revocable living trust be helpful if I become incapacitated?

5.     How could a revocable living trust be helpful at my death?

6.     Who should be the trustee of my revocable living trust?

7.     How are my assets put into the revocable living trust?

8.     What are the disadvantages of a revocable living trust?

9.     If I have a revocble living trust, do I still need a last will and testament?

10.   Will a revocable living trust help reduce the California or Federal estate taxes?

11.   Will I have to file an income tax return for my revocable living trust?

12.   What other estate planning documents should I have? 

13.   What other kinds of trusts are there?

 14.   Who should draft a revocable living trust for me?

 15.   Should I beware of "promoters" of financial and estate planning services?

 16.   How much does a revocable living trust cost?

 17.   How do I find a qualified estate planning lawyer?

1. What is a revocable living trust?  

It is a written legal document that partially substitutes for a last will and testament. With a revocable living trust, your assets (your home, bank accounts and stocks, for example) are put into the revocable living trust, administered for your benefit during your lifetime, and then transferred to your estate beneficiaries when you die.Most people name themselves as the trustee in charge of managing their revocable living trust's assets.

This way, even though your assets have been put into the revocable living trust, you can remain in control of your assets during your lifetime. You can also name a successor trustee (a person or an institution) who will manage the revocable living trust's assets if you ever become unable or unwilling to do so yourself.

The revocable living trust described in this pamphlet is a revocable living trust (sometimes referred to as a revocable inter vivos trust or a grantor trust). Such a trust may be amended or revoked at any time by the person or persons who created it (commonly known as the trustor(s), grantor(s) or settlor(s)) as long as he, she, or they are still competent.

Your revocable living trust agreement:

  • Gives the trustee the legal right to manage and control the assets held in your revocable trust.
  • Instructs the trustee to manage the trust's assets for your benefit during your lifetime.
  • Names the beneficiaries (persons or charitable organizations_ who are to receive your trust's assets upon your death.
  • Gives guidance and certain powers and authority to the trustee to manage and distribute your revocable living trust's assets. The trustee is a fiduciary, which means he or she holds a position of trust and confidence and is subject to strict responsibilities and very high standards.  For example, the trustee cannot use your revocable living trust's assets for his or her own personal use or benefit without your explicit permission.  Instead, the trustee must hold and use the revocable living trust assets soley for the benefit of the trust's beneficiaries.

A revocable living trust can be an important part-and in many cases, the most important part-of your estate plan.
2. What can a revocable living trust do for me? 

It can help ensure that your assets will be managed according to your wishes-even if you become unable to manage them yourself.

In setting up your revocable living trust, you may serve as its trustee initially or you may choose someone else to do so. You can name a trustee to take over the revocable trust's management for your benefit if you ever become unable or unwilling to manage it yourself. And at your death, the trustee-similar to the executor of a last will and testament-would then gather your trust assets, pay any debts, claims and taxes, and distribute your assets according to your instructions. Unlike a last will and testament, however, this can all be done without California probate court supervision or approval.

3. Should everyone have a revocable living trust? 

No. Young married couples without significant assets and without children, who intend to leave their assets to each other when the first one of them dies do not need a revocable living trust and would not benefit as much from having a revocable living trust. Other persons who do not have significant assets and have very simple estate plans also do not need a revocable living trust. Finally, anyone who wants California probate court supervision over the administration of his or her estate should not have a revocable living trust. The greater the value of your assets (particularly if you own real estate), the greater the need for a revocable living trust. And having a revocable living trust could be important in the event of an accident or sudden illness.

Also, if you may need to consider Medi-Cal or Medicaid benefits, a revocable living trust, depending on its terms, could create issues that would be required to be dealt with before you qualify for Medi-Cal or Medicaid benefits.  In that event you should contact an experienced and knowledgeable California elder law attorney regarding Medicaid and Medi-Cal issues.

4. How could a revocable living trust be helpful if I become incapacitated? 

If you are the trustee of your own revocable living trust and you become incapacitated, your chosen successor trustee would manage the revocable trust's assets for you. If your assets were not in a revocable living trust, however, someone else would have to manage them. How this would be accomplished might depend on whether your assets were separate or community property.

If you are married or in a registered domestic partnership, assets acquired by either you or your spouse or domestic partner while married or in the partnership and while a resident of California are community property. (Note: In domestic partnerships, earned income is not treated as community property for income tax purposes.)

On the other hand, any property that you owned before your marriage or registration of your partnership, or that you received as a gift or inheritance during the marriage or partnership, would probably be your separate property.

In California, community property could be managed by your spouse or registered domestic partner if he or she is competent. If you own separate property (or are not married or in a registered domestic partnership) and you become incapacitated, such assets could be managed by an agent or attorney-in-fact under a power of attorney (See #12); without planning, however, your separate property assets would be subject to a probate court proceeding called a conservatorship.

During the conservatorship process, a judge could determine that you were unable to manage your own finances or to resist fraud or undue influence. The court would then appoint someone (a conservator) to manage your assets for you. And the conservator would report back to the court on a regular basis.

Your conservator might be someone whom you previously nominated. Or, if no one had been nominated, it might be your spouse, registered domestic partner or another family member. If none of those persons are available, then it might be the public guardian.

Conservatorship proceedings are designed to help protect you at a time when you are vulnerable or incapable of managing your assets. However, they are also public in nature and can be costly because of the substantial court intervention. In addition, conservatorship proceedings may be less flexible in managing real estate or other interests than a well-managed living trust.

5. How could a revocable living trust be helpful at my death?

The assets held in your living trust could be managed by the trustee and distributed according to your directions without court supervision and involvement. This can save your heirs time and money. And because the trust would not be under the direct management of the probate court, your assets and their value (as well as your beneficiaries' identities) would not become a public record. The heirs and beneficiaries of your estate would still have to be notified about the revocable living trust and advised, among other things, of their right to obtain a copy of the revocable trust document.

If your assets (those in your name alone) are not in a revocable living trust when you die, they would be subject to California  probate administration. Probate administration is a court-supervised process for transferring probate estate assets to the beneficiaries listed in one's last will and testament.

After your death, a petition would be filed with the California probate court (usually by the person or institution named in your last will and testament as the executor). After notice is given to all interested persons, a probate court hearing would be held. Then your last will and testament would be admitted to the California probate court and an executor would be officially appointed by the probate judge. An inventory of your probate estate assets would be filed with the probate court and notice would be given to your creditors so they could file claims with the California probate court against your probate estate. The probate process would end once the probate court approved a final distribution of the probate estate assets.

California probate can take more time to complete than the distribution of property held in a revocable living trust. In addition, probate estate assets tied up in probate may not be as readily accessible to the beneficiaries of your estate as those held in a revocable living trust. And the cost of a California probate is often greater than the cost of managing and distributing comparable assets held in a revocable living trust.

If you or a family member are the victim of elder abuse or nursing home abuse, the trustee of your revocable living trust and the holder of your durable power of attorney may have the right to redress the harm caused to you through a lawsuit against the nursing home or the perpetrator of the elder abuse.  You should consult an experienced and knowledgeable elder abuse attorney or lawyer if those circumstances should arise.

6. Who should be the trustee of my revocable living trust? 

Many people serve as trustees of their own revocable living trusts until they become incompetent or die. Others decide they need assistance simply because they are too busy or too inexperienced or do not want to manage their day-to-day financial affairs.

Choosing the right trustee of your revocable living trust to act on your behalf is very important. Your trustee will have considerable authority and responsibility and will not be under direct probate court supervision.

You might choose a spouse, adult child, domestic partner, other relative, family friend, business associate, or professional fiduciary to be the trustee of your revocable living trust. The professional fiduciary could be a licensed, registered individual, or a bank or trust company licensed by the State of California. You may also name co-trustees.

Discuss your choice with a qualified estate planning lawyer or attorney. There are many issues to consider. For example, would the appointment of one of your grown children as trustee of your revocable trust cause a problem with his or her siblings? What conflicts of interest would be created if you name a spouse, child, business associate, or partner as your trustee revocable living trust? And will the person named as your successor trustee have the time, organizational ability and experience to administer your revocable living trust effectively?

7. How are my assets put into the revocable living trust? 

Once your revocable living trust has been signed, an important task remains. To avoid court-supervised conservatorship proceedings if you should become incapacitated, or the California probate process at your death, your assets must be transferred to the trustee of your revocable living trust while you are still alive. This is known as funding the revocable living trust.

Deeds transferring your real estate to your revocable living trust must be prepared and recorded. Bank accounts and stock and bond accounts or certificates must be transferred to your revocable living trust as well. These tasks are not necessarily expensive, but they are important and do require some paperwork.  Your estate planning attorney or lawyer can provide you with direction for the funding of your revocable living trust.

A revocable living trust can hold both separate property and community property. This makes it convenient for spouses and registered domestic partners to plan for the management and ultimate distribution of their assets in one revocable living trust document. (Note: While registered domestic partners have many of the same rights as spouses, be aware that federal tax law does not provide the same tax benefits for domestic partners as it does for spouses, especially with regard to the federal estate tax.)

If you own real estate in another state, you might (depending on that state's law) transfer that real estate asset to your revocable living trust as well to avoid the probate court in that other state. An estate planning lawyer or attorney from that state can help you prepare the real estate deed and complete the transfer of the real estate to the revocable living trust. If the real estate is located in California, a California estate planning lawyer or real estate attorney should prepare the real estate deed and advise you on transferring such property to your revocable living trust. 

An estate planning attorney or lawyer can help you transfer other assets to your revocable living trust as well. For example, you should consider changing the beneficiary designations on life insurance policies to the revocable living trust. As for the beneficiary designations on a qualified retirement plans (such as a 401(k) or an IRA - individual retirement account), you should seek a qualified estate planning lawyer or attorney's professional advice because there are serious income tax issues involved in dealing with such retirement plan beneficiary designations and revocable living trusts.

There have been meaningful changes in the rules relating to beneficiary designations for individual retirement accounts (IRA) and qualified retirement plans in the last few years.  Now more than ever it is important to consult with a knowledgeable and experienced estate planning attorney or lawyer.  A revocable living trust, with the proper language, and with proper beneficiary designations can accomplish substantial income tax savings from the distribution of the IRA or retirement plan balances.

8. What are the disadvantages of a revocable living trust? 

Because revocable living trusts are not under direct court supervision, a trustee who does not act in your best interests may, in some cases, be able to take advantage of you. (In a California probate, direct probate court supervision of an executor reduces this risk, but does not eliminate it.)

In addition, the cost of preparing a revocable living trust could, in some cases, be higher than the cost of preparing a last will and testament. However, it depends on the particular estate plan. The difference in cost may not be significant if the estate plan is complex.

Also, keep in mind that a revocable living trust can create additional paperwork in some cases. For example, lenders may not be willing to lend to a revocable living trust trust and may require that real property be taken out of the revocable living trust (by a real estate deed) before they will agree to a loan on that real property.

9. If I have a living trust, do I still need a last will and testament? 

Yes. Your last will and testament affects any assets that are titled in your name at your death and are not in your revocable living trust or some other form of ownership with a right of survivorship. If you have a revocable living trust, your last will and testament would typically contain a pour-over provision and is often called a pour-over will. Such a provision simply states that all such assets should be transferred to the trustee of your revocable living trust after your death. (This does not mean, however, that your beneficiaries can avoid going through California probate court for these assets.)

Your last will and testament can nominate guardians for your minor children as well. Any assets held in a revocable living trust for your children would still be managed by the trustee. 

10. Will a revocable living trust help reduce the federal and state estate taxes? 

No. While a revocable living trust may contain provisions that can postpone, reduce or even eliminate federal estate taxes, similar provisions could be placed in a last will and testament to accomplish the same federal and California estate tax planning.

However, the revocable living trust can form the foundation of a more sophisticated estate plan if you have a taxable estate.  With a taxable estate, the proper implementation of other estate planning techniques are important to minimize or eliminate the California and federal estate taxes.  These techniques include, among others, grantor retained annuity trusts (GRAT), charitable remainder trusts (CRAT and CRUT), intentionally defective grantor trusts (IDGT), irrevocable life insurance trusts (ILIT), qualified personal residence trusts (QPRT), family limited partnerships, limited liability companies, private foundations,  and others.  The need for an experienced and knowledgeable estate planning lawyer or attorney is critical for the proper implementation of the more sophisticated estate plan.

11. Will I have to file an income tax return for my revocable living trust? 

No, not during your lifetime. The taxpayer identification number for accounts held in the revocable living trust is your Social Security number, and all income and deductions related to the trust's assets are reportable on your individual income tax returns.

After your death, the income taxation of the revocable living trust, which become irrevocable at your death, is similar to a California probate estate.

12. What other estate planning documents should I have? 

A California durable power of attorney for property management could be helpful if you ever become incapacitated. It deals with assets that were not transferred to your revocable living trust before you became incapacitated and any assets that you receive afterward. With this power of attorney, you appoint another individual (the attorney-in-fact) to make financial decisions on your behalf.

This power of attorney, however, cannot replace a revocable living trust because, among other things, it expires when you die. It cannot provide instructions for the distribution of your assets after your death.

You might also consider setting up a California advance health care directive / durable power of attorney for health care. This allows your attorney-in-fact to make health care decisions for you when you can no longer make them for yourself. In your advance health care directive, you may state your wishes regarding life-sustaining treatment, organ donation and funeral arrangements as well. A health care directive also allows an authorized agent to access your medical information, which could be important in light of strengthened federal privacy laws.

13. What other kinds of trusts are there?

Testamentary trusts and irrevocable trusts are two other types of trusts:

  • Testamentary trusts are trusts that are based on instructions in your last will and testament; such trusts are not established until after the California probate process. They do not address the management of your assets during your lifetime. They can, however, provide for young children and others who would need someone to manage their assets after your death.
  • Irrevocable trusts are trusts that cannot be amended or revoked once they have been created. These are generally tax-sensitive documents. Some examples include irrevocable life insurance trusts, irrevocable trusts for children, and charitable trusts. A qualified estate planning lawyer or attorney can assist you with irrevocable trust documents.

14. Who should draft a revocable living trust for me? 

A qualified estate planning lawyer or attorney can help you prepare your revocable living trust, as well as a last will and testament and other estate planning documents.

While other professionals and business representatives may be involved in your estate planning, a revocable living trust is a legal document, which should be prepared by a qualified estates and trusts lawyer.

In addition, the California State Bar urges you to seek advice only from professionals who are qualified to give estate planning advice. Many professionals must be licensed by the State of California.

Ask the professional about his or her qualifications. And ask yourself whether the advisor might have an underlying financial incentive to sell you a particular investment, such as an annuity or life insurance policy. Such a financial incentive could bias that professional's advice.

A revocable living trust is often held out as an enticement or "loss leader" by offices that are not staffed with competent and qualified estate planning lawyers and attorneys. Unfortunately, some sellers of dubious financial products gain the confidence and private financial information of their victims by posing as providers of revocable living trust or estate planning services.

15. Should I beware of "promoters" of financial and estate planning services? 

Yes. There are many who call themselves "trust specialists,"  "certified planners" or other titles that suggest the person has received advanced training in estate planning. California is experiencing an explosion of promotions by unqualified individuals and entities which only have one real goal-to gain access to your finances in order to sell insurance-based products such as annuities and other commission-based products. To better protect yourself:

  • Consult with a estate planning lawyer or attorney, or other financial advisor who is knowledgeable in estate planning, and who is not trying to sell a product which may be unnecessary-before considering a revocable living trust or any other estate or financial planning document or service.
  • Always ask for time to consider and reflect on your decision. Do not allow yourself to be pressured into purchasing an estate planning or financial planning product.
  • Know your cancellation rights. California law requires that sellers who come to your home to sell goods and services (not including insurance and annuities) that cost more than $25 must give you two copies of a notice of cancellation form to cancel your agreement. You, the buyer, may cancel this transaction up until midnight three business days later. You have 30 days to cancel insurance and annuity transactions.

  • Be wary of organizations or offices that are staffed by non-lawyer personnel and that promote one-size-fits-all living trusts or living trust kits. An estate plan created by someone who is not a qualified estate planning attorney or lawyer can have enormous and costly consequences for your estate. Do not allow yourself to be pressured into a quick purchase.

  • Be wary of home solicitors who insist on obtaining confidential and detailed information about your assets and finances.

  •  Find out if any complaints have been filed against the company by calling local and state consumer protection offices or the Better Business Bureau.

  • Insist on the person's identification and a description of his or her qualifications, education, training and expertise in estate planning. Also, keep in mind that legal document assistants are not permitted to give legal advice. And paralegals must work under the direct supervision of a lawyer. (As a precaution, ask to speak directly to the supervising attorney if you are not given an opportunity to do so.)

  •  Always ask for a copy of any legal document or estate planning document you sign at the time it is signed.

  •  Report high-pressure tactics, fraud or misrepresentations to the police or California district attorney immediately.

16. How much does a revocable living trust cost? 

It depends on your individual circumstances and the complexity of estate planning documentation and planning required to achieve your goals and objectives. The costs may vary from estate planning lawyer to lawyer. Generally, the costs will include the lawyer's charges for discussing and designing your estate plan with you and for preparing a revocable living trust agreement, your last will and testament, power of attorney or other necessary legal documents; supervision over their execution; and services or instructions for funding your revocable living trust.

It is crucial to keep in mind that a revocable living trust is a very important part of your estate plan. Avoid being lured by promotions for extremely low-cost revocble living trusts without checking out those who are making the offer.

If you retain an estate planning lawyer or attorney, you should understand what legal services are to be provided and how much they will cost. California law generally requires that an estate planning lawyer explain, in writing, the nature of the services to be rendered, the cost of those services and the payment terms. Some estate planning lawyers charge a flat fee for estate planning services. Others charge on an hourly basis or use a combination of both types of estate planning fees.

17. How do I find a qualified estate planning lawyer?

If you do not know an estate planning lawyer or attorney who is qualified to help you with your estate plan, ask someone whose judgment you can trust-a friend, an associate or an employer, for example.

If you do decide to hire an estate planning lawyer, make sure that you understand what you will be paying for, how much it will cost and when you will be expected to pay your bill.

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