Question: I have my bank accounts (CD's Savings etc) in the _ Revocable Trust. My self and my friend are trustees. If I die, does the Trust “disappear" and are my accounts automatically distributed to the surviving trustee or will the trust as a taxable entity still exist? M. N.
Answer: Dear M. N. - The short answer to your question is, it depends upon what the trust instrument says.
Unfortunately, we often get caught up in the legal ramifications of a trust and lose track of the fact that it is nothing more than someone holding your property for the benefit of someone else.
The relationship you create with a trustee is very much the same as the relationship you create with a babysitter. For example, if you're going out for the evening, you might give your babysitter $50 to take your kids to a movie and buy them some treats. In so doing, you've created a trust. You are the creator or “grantor" of the trust, your babysitter is the trustee, and your kids are the beneficiaries. Although this type of trust is of short duration (maybe just a few hours) and consists of an oral agreement with your babysitter - or, at best, a short note attached to the refrigerator, we all know that the $50 doesn't belong to the babysitter. The babysitter is simply holding it for the benefit of your kids as you instructed. In fact, you probably told the babysitter what movie to take the kids to and what refreshments the kids could have. If you're like most parents, you probably left some pretty detailed instructions as to what the babysitter could or could not do with the $50.
While we understand the babysitter relationship very well, we often fail to understand the same basic relationships when we're talking about estate planning and the use of a revocable living trust. Perhaps it's the legal terminology, or maybe it's the fact that we're talking about a subject that we'd just as soon avoid. Whatever it is, we often fail to recognize that a trust is nothing more than a note to our babysitter - only this time we're not talking about giving someone a few bucks to entertain the kids for the evening, we're talking about giving someone all of our property for the benefit of our loved ones after we're gone. It's basically the same - just more permanent!
That being the case, there is absolutely no reason why anyone with a trust (or a will for that matter) doesn't know exactly what the trust (or the will) says. It's your note to your babysitter. You're the boss! The trustee is simply carrying out your instructions. However, since you're not likely to be around when the trustee has to carry out his instructions, you should provide as much detail as possible in your trust instrument. As for the trust, it will continue for as long as the trustee is holding any of your property. As soon as it's all distributed to your beneficiaries, the trust will end because your trustee's job is over. If your beneficiaries are older, that might be just a few months after your death. If your beneficiaries are younger and you want your trustee to hold your property until they get older, then the trust might last for any number of years after your death.
So, M. N. , the first thing you need to do is take a close look at your trust instrument to see what it says. That's your note to your babysitter. Don't get bogged down by all the legalease - go right to the part that talks about your property and how it will be distributed upon your incapacity or death. That part should be straightforward and understandable. If you don't like what it says or if you want to say something different, then you need to change it. At the very least, you have to understand what it says and you have to agree with it.
Finally, remember that you're creating a trust. It's called a trust because you're “trusting" someone to hold and manage and distribute your property according to your wishes when you can't do it on your own. But, as we all know, “trust" only goes so far. For that reason, we also need to insure that our relationship with our trustee will have the full support of the law. After all, we're not going to be around to enforce the agreement if the trustee goes astray. That's where good estate planning attorneys can help. They've been there, they've done that, and they know how to prevent those things from happening. Yes, it will cost a few bucks to have an attorney cross the i's and dot the t's - and you might not know why or wherefore. But, you should bite the bullet and get it done. You may not sleep any better, but your loved ones will!
Attorney Michael Pancheri is a practicing attorney and the founder and CEO of the Living Trust Network. You may contact him by email at email@example.com . You may also contact him at the Living Trust Network's web site. Its URL is http://www.livingtrustnetwork.com
Copyright 2007. The Living Trust Network, LLC.