A short and sweet Trust might be easier to read through, but it is likely not an adequate foundation for a solid estate plan. One purpose of a Trust is to anticipate issues that might arise after your disability or death; another is to provide instructions for what should be done with your assets in different situations. A few pages of simple instructions just are not sufficient to address all – or even most – of the potential situations that might arise.
Empowering Your Trustee
Much of your Trust is devoted to defining the powers and duties of your Trustee, the person in charge of managing your Trust assets. Your Trustee may be faced with any number of situations to deal with, and a well-planned Trust will empower him or her to manage the Trust in a way that best suits the Trust beneficiaries while complying with your wishes.
When your Trust does not specifically empower your Trustee to take certain actions on behalf of the beneficiaries, your Trustee’s hands can be tied. For example, do you want your Trustee to be able to mortgage your home to pay for your children’s education or for medical expenses? If your Trust does not explicitly authorize your Trustee to do this, the bank might be concerned that your Trustee is not permitted to sign the mortgage documents.
Identifying Your Beneficiaries
Another portion of your Trust identifies your beneficiaries. At first blush, it seems like this should be the shortest part of the document. After all, you just need to list a few names, right?
Not necessarily. Imagine you want to make Amanda, Ben, and Charlie your Trust beneficiaries. If your Trust document simply names these beneficiaries and goes no further, a spectrum of potential problems arises. What if Amanda dies before you, and she leaves behind children? Should her children inherit her share of the Trust assets, or should Ben and Charlie divide the Trust assets evenly? If you want Amanda’s children to inherit her share of the assets, in what proportion? What if Amanda has adopted children or step-children – should they be treated the same as her biological children?
This is just a taste of the many issues addressed by a good Trust. A well-drafted Trust document anticipates as many potential questions and problems as possible, and resolves them according to your wishes. This simply can’t be done in a handful of pages.
An experienced estate planning attorney will delve into your financial and personal situation, help you clarify your hopes, wishes, and intentions for your loved ones, and then draft a detailed Trust designed to bring your plans to life.
This article was written by The American Academy of Estate Planning Attorneys and provided to you courtesy of Nicole Livingston, Attorney with Sinclair Prosser Gasior. Sinclair Prosser Gasior has been a member of the American Academy of Estate Planning Attorneys since 1995.
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