This FAQ is designed to specifically answer questions that may come up during the living trust interview.
What is the Definition of a Legal Residence?
A legal residence where you have your permanent home or principal establishment and to where, whenever you are absent, you intend to return; every person is compelled to have one and only one domicile at a time.
What happens if they already have a living trust?
If a client has a current trust, the estate plan portal will ask them a series of questions. The attorney will then make a recommendation as the the best way to bring their documents up to date.
Can more than one person act as a successor trustee at the same time?
The successor trustee takes over management of the trust when the trustee has become incapacitated or died.
Add the first successor trustee, then determine if you would like to add another one to act if the first one is unable to serve. When two successor trustees are added you will need to indicate if you want them to serve alone in the order listed, or together as co-trustees. Co-trustees can complicate matters, if co-trustees are chosen consider their relationship and if they will work well together.
The estate planning portal allows you to add up to 4 total successor trustees. When more than two are added, they serve in the order listed.
Any person can be disinherited, ex spouses are automatically listed in the disinherited section.
What is included in personal property?
Personal property refers to items like furniture, clothes, jewelry, appliances, cars, etc.
Specific bequests are typically expressed as cash amount or an assets of monetary or sentimental value such as an automobile of a piece of art.
Beneficiaries for the balance of the assets
These are the people who you want to inherit the financial and real estate assets of your estate.
If one of the beneficiary's own money to the trustee, they have the option of subtracting the amount from the distribution, or forgiving the debt.
While all inheritance is received as the beneficiary’s sole and separate property, putting
a person’s inheritance into a sub-trust rather than giving it to them directly can add
separation or a level of protection from inadvertently co-mingling an inheritance with
marital property. This is often used when parents are concerned about their children
co-mingling their inheritance with their marital property, or about the future of the child’s
Unless the trust dictates otherwise, upon reaching age 18, beneficiaries will receive their entire inheritance in a lump sum. Alternatively, you can continue to hold their assets in trust with delayed distributions over time as your beneficiaries mature.
You can select up to 3 different ages and the percentage to be distributed at each age.
Assets can also be held in trust until certain behavioral conditions are met. You can choose one or more of the following behaviors:
- Drug Free
- Alcohol Free
- Gambling Free
There is specific language in the trust that addresses who is responsible for determining these conditions and how they are enforced. Review the language prior to finalizing the trust.
Can I update my trust if circumstances change?
Yes, you can change or amend your trust as often as you wish. Your estate plan should change to stay updated as your life changes.
These major changes could include:
- Birth or adoption of a child
- Death of a beneficiary
- Change or add a beneficiary
- Change the trustee or successor trustee
- Change the way the property is distributed
- Change which property is part of the trust
- Change your name
- Having acquired new property that you want to add to the trust
- Having moved to another state where the inheritance laws are different
You can amend an estate plan trust online for typically much less than a standard attorney charges.
What if I already have a trust, but it is old and things have changed?
The answer depends on a couple of things. The age of the trust and the amount of changes or amendments it requires. Likely, the most cost effective option is to have the original attorney review and amend the trust as needed. If that is not possible, the next best option may be to have them do a new trust in the portal that encompasses all of their current wishes and makes any updates needed. Typically, to have a new attorney review a trust done by someone else is more expensive than doing a new trust with the estate planning portal. If fact, about 20% of the trusts we do are this exact scenario.
How do I give others access to the online estate plan documents?
From your advisor account, click on the name of your client, then click on the blue Send Account Invitation button. This will send an invitation to the trust owner.
To send an invitation to any of the other parties mentioned in the estate plan (Children, spouses, successor trustees, and beneficiaries), click on the name of your client, then click on the blue Go to Dashboard button. From the client dashboard, click the PEOPLE tab towards the top of the page. From there you can send or resend an email instructing the person on how to log into the the estate planning portal.
Is it possible to set up the Financial Power of Attorney so it only goes into effect when the person becomes incapacitated?
A common question around powers of attorney is when do they go into effect. The attorneys who power the estate planning portal have determined the best course of action is to make them effective immediately.
Many people like the idea of these "springing" documents, because they're uncomfortable with making their power of attorney effective while they can still manage their own affairs. However, in practice, using a springing power of attorney can cause more problems than it solves.
Delay: Instead of being able to use the power of attorney as soon as the need arises, the agent must get a “determination” of your incapacity before using the document. In other words, someone – usually a doctor – must certify that you can no longer make your own decisions. This could take days or weeks and disrupt the handling of your finances.
HIPAA/Privacy issues: State and federal laws, including the Health Insurance and Portability Act (HIPAA), protect your right to keep medical information private. This means that doctors can release information about your medical condition only under very limited conditions. To certify your incapacity, your agent will need to provide proof that the doctor may legally release information about you to your agent. You may be able to resolve this issue by completing a release form before you become incapacitated. However your agent could still run into problems caused by bureaucracy or by the doctor’s confusion about what is legally required.
Navigating these issues could cause serious headaches and delays for your agent.
Definition of Incapacity
To state the obvious, if your power of attorney requires you to be incapacitated, then you’ll have to be incapacitated before your agent can help you manage your finances. But what does “incapacity” mean, and to whom? If you make a springing power of attorney, your document will have to define incapacity. Then, when it comes time for the determination, your doctor will have to agree that you meet that definition. But how do you know now what health changes will cause you to need help managing your finances? What if you want help before you become incapacitated as defined by your document? What if you have some good days and some bad days? What if your agent or your lawyer believes you no longer have capacity, but your doctor disagrees? These gray areas may make it difficult, if not impossible, for your agent to help you when you need it.
You can avoid all of these problems by making a durable power of attorney that takes effect as soon as you sign it. Just make sure your agent understands exactly when and how you want the document to be used. This degree of trust is a basic requirement for naming an agent. If you don’t trust your agent to handle the power of attorney exactly as you intend, you should choose someone else to handle your finances.
Do I need to transfer accounts with a POD / TOD into the Trust?
While not required, if accounts with a POD or TOD are transferred into the Trust, the grantor can have more 'control from the grave' over those accounts. The Trust does allow for sprinkling of assets over time and allows for behavioral conditions on the payouts.