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

Dear Toby,

It seems fairly clear from the context of your letter that your father never got around to seeing an attorney about his parents’ trust after they passed away. And you may also be a bit confused about the way trusts work.

We cannot be sure without actually reviewing your grandparents’ trust, but if the trust left everything to your father upon their deaths, then the properties and cash should be distributed outright to your father, unless his inheritance is supposed to be held within a dynasty trust for your father’s lifetime benefit. If your father were to pass away, his interest in his parents’ trust will likely belong to his probate estate and shall then pass under the terms of your father’s will, if he has one.

What you and your father ought to do is to review his parents’ trust with an attorney to verify what ought to be done. He should also look into his own estate plan and should probably create his own revocable trust.

You also need to understand that there is a distinction to be made between who inherits a trust when someone dies (the beneficiaries) and who shall have the responsibility of administering the trust, paying the bills and taxes, and distributing what’s left to the beneficiaries (the successor trustees). It certainly makes sense for your father’s estate plan to name you as his successor trustee, if you’re the only child who lives nearby. But your father shouldn’t name you as his sole beneficiary unless he wants to disinherit his two other sons. There’s nothing preventing your brothers from inheriting California properties if they live out of state, or even out of the country. Unless that’s what your father wants. He needs to see a lawyer soon.

Len & Rosie

Dear Readers:

Election time is coming soon. Don’t forget to vote. When it’s time to vote, it’s also a good idea to review your estate plan.

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.

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 thinks that since he’s trustee he can lord it over his brothers and sisters, then he’s not the right person 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 2018, up to $11,200,000 of your assets may pass free of Federal Estate Tax upon your death, and that amount goes up annually with inflation. This means that many of you with A/B trusts should update your trusts to the ordinary type of trust that leaves everything to the surviving spouse, who won’t be answerable to anyone.

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 to review and update your estate plan.

Len & Rosie

Tillem McNichol & Brown