Decisions Needed for a Living Trust

Alternate Beneficiaries, Co-trustees, Successor Trustees

By: Mitchell Miller

An essential part of your estate plan is a living trust because a will is not enough to protect your estate from going through probate in the state in which you die. A living trust does protect your estate from going through probate. This is especially important if you own property in other states and countries.

The legal requirements of probate can be very costly and extremely aggravating for your heirs. A living trust will enable your heirs to avoid all of this unpleasantness.

The process of estate planning is helped to go smoothly by a good estate planning attorney. You should decide in advance a few important questions in order to help the estate planning process:

When you set up a living trust -- while you (or you and your spouse) are alive and in good mental health. you (and your spouse) are the Trustee(s). In the trust you name Successor Trustees to take over when you are incapacitated or deceased.

You must decide who it is that you want to make the decision that you are no longer capable of handling your own affairs and that the Successor Trustees will take over?

Do you want one person such as your spouse to make that decision? More than one person? Your spouse and children? Your spouse and doctor? Two doctors? The choice is up to you, but think it through carefully.)

Your trust will always name a Successor Trustee, but have you considered whether you want to name Successor Trustees to serve as Co-Trustees?

For example, if you and your spouse have children from different marriages, you may want to ensure that neither set of children has power over the other set of children. One way to try to prevent this is to make sure there is always a separate Successor Trustee (serving as Co-Trustees) for each set of children so that neither set of children can be cut out of an inheritance.

You must decide to whom to leave family heirlooms?

This situation can cause real friction in the family. If you've promised your mother's wedding ring to a daughter or a family portrait to a son, you need to specify these distributions in your trust.

If something should, heaven forbid, happen to your whole family, have you named alternate beneficiaries?

If there are no alternate beneficiaries named in your living trust, the legal designation that your "heirs at law" will be your alternate beneficiaries may be used by your estate planning attorney. This means that inheritance law decides who is next in line to inherit, which could result in a cousin you never heard of, or even hate, being named your heir.

Instead, you should ensure that your estate planning lawyer puts in your living trust specific family members, friends, and/or charities as alternate beneficiaries to cover this unlikely, but possible, situation.

The above information is NOT legal advice, only considerations for you to discuss with your own estate planning attorney. The providing of this material does not establish an attorney-client relationship.

About the Author

If you want to learn more about why you need a living trust in addition to a will in order to avoid probate, watch the short free video on the home page of Mitchell R. Miller's http://www.estateplanningforyou.com . There's also a second short free video explaining why you should review your estate planning every 4-5 years. Mitchell R. Miller has been a tax, trust and estate attorney for over 30 years.

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