Elder Law Advocates

The Elder Advocates
Len Tillem & Rosie McNichol


Columns of the week 

Entries in Trusts (23)

Wednesday
Jul032013

Successor Trustees and Beneficiaries

Dear Len & Rosie,

My family has a living trust with two properties that amount to around $1.5 million and also a few hundred thousand dollars in cash in various bank accounts. My Grandmother and Grandfather were the owners of the properties and money until they passed away a couple years ago at the ages of 94 and 96. My father is 75 and is the last living child (both his brothers have passed), and according to my grandparents' trust has since acquired everything, although no paperwork has changed and everything still appears in my grandparents' names.

My father is having a lot of heart trouble and is in the hospital as I write after suffering his 4th seizure this morning, he is ok for now. The living trust has the beneficiaries in order of my father, my oldest brother, my middle brother and then me. Both of my brothers have moved out of the state so my father and I would like to amend the trust to list me as the primary beneficiary. I am the one who will have to deal with everything anyway when my father passes.

Toby

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Thursday
Jun272013

Life Insurance policies and beneficiaries

Dear Len & Rosie,

A friend of mine had been married for about one year. Her husband just died tragically. At the time of his passing, he had not yet changed the beneficiary on his life insurance policy to his wife. His parents are still named as the beneficiary. Does the surviving wife have any claim on the life insurance, or is she out of luck? It's certain that some of premium payments would have been paid with community property funds.

Randy

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Thursday
Jun202013

Inheriting Property

Dear Len & Rosie,

For 24 years I have lived with my mother. I have been her care giver for the past 14 years. I gave up a lot of my life and personal happiness for her. I am not sorry I did this. My sister told me that she did not want to take care of mom, and that I could have the house if I did. She lives in another state and rarely visits.

Mother gave me one-half of the home so that we could borrow against the property. We qualified for the loan on my salary and her equity, and spent almost $100,000 on repairs and improvements. I pay the mortgage payments, taxes and insurance. The home is now worth $400,000.

Now my sister complains that she is being cheated out of her fair share of the home when mom dies. My sister says that she feels that this is cruel and that she is being punished for "living her own life".

I have tried to explain to my sister that I have paid for the house and cared for mom, and that the house is my retirement investment. She doesn't accept this, and I know she is going to cause trouble when my mother dies.

Donna

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Monday
Jun172013

Trust Administration

Dear Len & Rosie,

My mother died one week ago. She has a trust. I am the trustee. My 33-year-old nephew (her grandson) has lived with my mother from the time he was 18. In the last few years he has gotten into drugs. Two weeks before my mother died, my nephew took her to several banks, and coerced her into giving him $2,950.

We did an intervention on him. He was told to go to treatment or go to jail. He said he would enter a drug rehab program but of course he didn't do it. I changed the locks on mother's home, but a police officer said I have to let him back in because he gets his mail there. He lived with my mother for fifteen years and never paid her a dime. Please help.

Karin

 

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Monday
Jun102013

Executor Responsibilities

Dear Len & Rosie,

A good friend of mine died last month, and I have just discovered that he named me as his executor. I haven't the faintest idea what I'm supposed to do. I'm not an attorney, and I don't know if I want to devote the time to it. I'm not even sure that I want to be executor. My friend is survived by his four adult children, two sons and two daughters. They have never gotten along with each other. I just know that they are going to start fighting over their father's estate, which is worth over $500,000. Just last week they were arguing over who would get his stereo and television. What is an executor, what does the job pay, and what can I do if I don't want to do it?

Edward

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Monday
Jun032013

Conservatorship 

Dear Len & Rosie,

My mother passed away last May without a will. My stepfather is in the hospital right now with only days left to live, again without a will. I do not have a power of attorney. My step-father's physician at the hospital wrote a letter stating that my step-father is unable to make decisions and has a terminal disease. How do I get conservatorship or anything related so that I can handle his affairs? There isn't much but what there is I would like to take care of.

Tracey

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Thursday
May232013

Updating your trust

Dear Readers:

Many of you already have revocable trusts that you made years ago, or maybe your parents have been kind enough to give you a copy of theirs. Many people are under the impression that since they have a trust, they don’t need to do anything else. That’s not true. The trust you created years ago may not be appropriate for you now. Don’t blame your lawyer. Things change. What was a good idea fifteen years ago may not be such a good idea today. As a rule of thumb, you should look through your trust every five years or so. Let’s do it now. Go get your trust binder. We’ll wait.

Start with the Table of Contents, if there is one. There should be a paragraph labeled something like, “Successor Trustees.”  Turn to that page. Are the trustees you  named still alive? Are they honest? Are they good with money? Do they get along with the rest of your family, or are they a source of conflict? If the eldest son you named as trustee (you know that you did) thinks that since he’s trustee he can lord it over his brothers and sisters, then he’s not the right man for the job.

Next, find the paragraph that says something like “Disposition on Death” or  “Disposition on Death of Surviving Spouse.”  That’s the paragraph that says who gets what when you die. Read it. Does it still make sense? Have any of your children died? Are any of your children now disabled? Do you have a spendthrift child who can’t be trusted with money? Does your trust leave your son’s ex-wife an inheritance you don’t want her to get any longer? Does your grandson have a drug problem? Maybe you need to make some changes.

Now look at the last pages of your trust. There should be a Schedule of Trust Assets. Read it. Have you moved? If so, is your new home in the trust? Are your retirement accounts listed in your trust document (they shouldn’t be). Who are the beneficiaries of your retirement accounts and life insurance policies? Did you leave your IRA to the trust? (Don’t unless your lawyer says so.)

If you’re married, find the part of the trust that talks about what happens between the first death and the second. Do you have an A/B trust that divides everything between a “Survivor’s Trust” and a “Bypass Trust” or “Exemption Trust?” If so, then maybe you don’t need or want an A/B trust any longer. An A/B trust is a great way to avoid death tax, but it’s more expensive to administer after the death of the first spouse to die.

As of January 2013, up to $5,250,000 of your assets may pass free of Federal Estate Tax upon your death, and that amount goes up annually with inflation. Even better, this death tax exemption won’t expire - it will remain the law unless and until the Congress and President change it. This means that many of you with A/B trusts should restate (amend in full) your trusts to the ordinary type of trust that leaves everything to the surviving spouse, answerable to no one.

Is either you or your spouse in a nursing home? Do you suffer from an ailment that will likely put you in a nursing home before you die? Are you already on Medi-Cal running up an estate claim that will be due and payable upon your death? If so, it’s not too late to protect your assets from the cost of your medical care.

If you are not completely comfortable with the answers to all of these questions, then you need to see a trusts and estates attorney and update your estate plan.

Len & Rosie

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Friday
May102013

Disinheriting a child 

Dear Len & Rosie,

My elderly mother recently passed. I am trustee and only beneficiary of her trust. I have a sister, who I have not seen or heard from in 40 years when she said she hated all of us and never wanted anything to do with us again. She even gave up her five-year-old son for strangers to adopt and would not let my parents adopt him. In the last few years she has visited my mother a few times a year. Now she has retained a lawyer to challenge the trust. Her court petition states that my mother was insane and that I committed elder abuse by forcing her into making this trust, but my mother left her out of the trust because of what she did in regards to their only grandchild and how she treated her and my father.

Bobbie

 

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Friday
Apr262013

Estate Planning

Dear Len & Rosie,

I am one of nine adult children. We have an 81-year-old very stubborn mother who owns her home free and clear, plus her personal possessions. She is a bit gun shy about discussing her estate, and she has no will. Whenever we try to talk to her about getting a will or a living trust, she always says, "Don't rush me into the grave." Her only concern is that all nine of us get an equal share of the house after it is sold.

She says that she wants three of us named as executors of her estate. Frankly, this really worries me, because the three of us have very different personalities, and we are spread out all over the country. I really want to avoid future problems so we won't have a big mess on our hands and wind up paying more in lawyer fees and taxes then we inherit. What can you suggest?

Janice

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Thursday
Apr182013

Life Insurance Policies and Beneficiaries

Dear Len & Rosie,

I have a $100,000 life insurance policy. I also have a twenty-four year old son from a previous marriage. He's in drug rehab. Originally my son was the beneficiary of the policy, but since I found out about his drug use I thought it best to leave it to my wife. She has agreed to dole out money to my son as he needs it.

If my wife and I pass away tomorrow who will get my life insurance? Is there some document I can draw up that would allow my son to benefit from the insurance without being able to spend it all on drugs?

Barry

 

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Friday
Mar222013

Deeds

Dear Len & Rosie,

I own a home and the deed is in my name only. My wife and I have been married for 23 years and she is a Japanese citizen. If I die, will my wife be able to get the home even though her name is not on the deed? Should I put her name on the deed?

Bob

 

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Monday
Mar042013

Trust Amendments

Dear Len & Rosie,

We finished our trust in 2003. We would like to change our beneficiaries. One of our charities is out of business and we would like to give that charity's share to another. Our original lawyer has moved and the new lawyer wants to charge us to "talk" to us before he will tell us how much it will cost to change the trust. Can we cross out the old list and handwrite changes ourselves? We are only in our 50's and expect that there will be other changed down the line. This is getting expensive.

Denise

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