Establishing a revocable trust for each and every client is not warranted. But for many clients, revocable trusts do offer some distinct benefits over a will and will be appropriate. Here are a few to consider:
Avoids Probate. Save costs and fees. Less of an issue in states with streamlined probate procedure.
Out of State Property. Avoids ancillary probate if settlor owns property in more than one state.
Privacy. But less privacy than previously with notice requirements of Probate Code Sec. 16100.
Incapacity Planning. At incapacity, the trust will provide for the orderly succession of the trustee position without the requirement of a court proceeding , e.g., guardianship or conservatorship.
Asset Management. Provides orderly management of a settlor’s financial affairs.
Ease of Management. Assets can be managed and invested by another person for settlor’s beneficiaries.
Certainty. Provides certainty in administration for client owning property in several states (e., can specify that California law applies).
Retention of Community Property Benefits. May retains CP character of marital assets if owner moves to non- community property state.
Separate Property. Can be useful to segregate separate property assets of spouses (i.e., before 2nd marriage).
Hope this is useful –
Clients coming to you for estate planning who are recently divorced should be aware of some landmines to insure that their estate plans end up in the hands of intended beneficiaries.
- Update life insurance and retirement plan beneficiary designations.
- If client has minor children, make sure guardians of estate are nominated.
- If a revocable trust has been established with ex-spouse, make sure it is revoked and trust property is re-transferred to parties awarded property in the divorce.
- If there is joint property, should it be severed?
- Update your advance health care directive and power of attorney for property management
- If remarrying is contemplated, is a premarital agreement in order so that you may leave property to children from your previous marriage in amounts that you desire?
- Now that you are single is the tax planning involved in your prior estate plan still appropriate?
Be very careful if your client has not finished the divorce process. There are automatic restraining orders that become effective for all divorcing parties and include prohibitions on revoking or modifying estate plans until the divorce is final. The intent with Automatic Temporary Restraining Orders (“ARTOS”) is to maintain the status quo of assets and ownership interests until the division of assets is complete.
Hope this helps!
This April Mentor Legal Drafting will conduct two three day revocable trust courses in the Bay Area, one in San Francisco and one in San Jose.
Designing and Drafting Revocable Trusts – San Francisco
Mentor Legal Drafting Courses
Friday, April 22, 2016 at 8:30 AM through Sunday, April 24, 2016 at 5:00 PM
San Francisco CA
Designing and Drafting Revocable Trusts – San Jose
Mentor Legal Drafting Courses
Friday, May 13, 2016 at 8:30 AM through Sunday, May 15, 2016 at 5:00 PM
San Jose, CA
For more information, please contact us!
Here is sample engagement letter for a husband and wife which was offered as a supplemental handout by Rob Harrison, one of our instructors. He is an excellent estate planning attorney who is based in in San Rafael, California.
I like the format, the sample fee schedule attached and the conflict of interest waiver provision.
Rob teaches the Preliminary Matters class in Bay Area Revocable Trust Course.
Check it out – Appendix B Engagement Letter
Many Mentor Legal Drafting courses have been offered since 2009. In that time I have had the opportunity to meet many students who are new to estate planning, some attorneys who are transitioning from other areas of the law and others who may be recently admitted to practice. We have all been their once.
In the course of a 20 hour CLE class many questions surface unrelated to the technical components of estate planning law. The questions usually relate to what a person needs to do to gain mastery of the subject, become competent and start building a practice.
So here goes – here are six ingredients that I think are key.
- Find a Mentor – As you build your practice, find out if there is a local mentor who you can consult with on cases. This is one of the quickest ways to jump start your knowledge base.There is no better way to learn than working on a real case you are getting paid for. You will take a bit of a financial hit initially, but the investment will be well worth it. In my experience, many attorneys who assume a mentor ship role will reduce their hourly rates. And I have found you get more focused and better advice if you are paying for it.
- Gorge On Learning – Get into the subject! The more you know the better. Go to as many lectures and CLE classes as you possibly can. Bar Associations, estate planning councils, financial institutions, law schools and private CLE vendors all put on numerous estate planning courses throughout the year. In the Bay Area there are a ton! Some courses can be an hour long, others can be a number of of days. Quite a few years back I went to a one week estate planning boot camp at Emory University put on by the ALI-ABA and Jeffrey Pennell. I learned so much in those five days!
- Join a Study Group – There are many attorneys who form study groups with peers. These can take various forms but in my experience they average around 7-10 members and sometimes may include a CPA, CLU and other estate planning professionals. In one that I was involved with, we met once a month and each member took turns presenting a “Hot Topic” every month. The best part of the hour (usually at lunch – you need to eat right!) was the discussion after the presentation. See if you can get into an existing one (ask your mentor) or form your own!
- Get Involved with your local or state bar associations – Try getting involved with the probate or estate planning sections. They are always looking for committee members. It’s a great way to get your name out there, network and learn form others.
- Build Templates – Try to build as much infrastructure as you can within your practice. What do I mean? Build templates for your wills and trusts and other estate planning documents, your engagement letters, your disengagement letters, your funding documents (i.e., deeds and PCORS, etc.) the full spectrum of letters to your clients. Customize of course, but don’t reinvent the wheel!
- Get Your Name Out There – Give some talks on estate planning to parent groups, your church, constituents of local nonprofits, etc. Let friends, family, other attorneys and business acquaintances know that you are an estate planner. You’ll get referrals eventually, trust me! Also join your local estate planning council. It’s good for other estate planners to know who you are!
Hope this was worthwhile – anybody out there??
Whoa!! – 11:35 pm and I have to work tomorrow at 7! Over and out.
As I writes this post it is pouring rain outside. Buckets!! Wow – do we need it, but all I can think of is that I definitely must get up to Tahoe! The skiing must be amazing!
Here’s some useful information for you. This was a handout from Jennifer Cunneen when she taught the marital planning class in 2012 in San Jose. Jennifer is a very experienced estate planner from San Jose. She also includes some dual representation language which is absolutely necessary when drafting a trust for a husband and wife.
Many attorneys like to send questionnaires to clients before an initial meeting to save everyone’s time and make the process more efficient. I think this works for some clients but not all. Some clients feel overwhelmed when they get these questionnaires and may need some hand holding to go through them. I usually tell clients finish as much as you can before you come into to meet with me and we can go over the rest in our initial meeting. This at least gets the procrastinators in your door which is necessary to get the whole process going.
Client Questionnaire & Dual Representation
In our live classes, we like to show good trust drafting examples and bad trust drafting examples. It’s good to see what the elements are for a well drafted trust. Here are examples of both extremes.
As can be seen from these examples, format and alignment matter. Before you read through the badly drafted trust, the expectations that the trust will not be well written is high! It looks so sloppy! Not to say that the language of the trust is not important – far from it! But remember, take some time to make the trust look like presentable. When the client(s) has passed, someone will be picking up the trust to figure out how to administer it. Make it easy on them!
Check these out!.
Badly Drafted Trust sample
Better Drafted Trust sample
In the last live course in Newport Beach, many questions came up regarding beneficiary designations. This is not a riveting area of estate planning, but it is so so important.
Think about it. What a bummer to have a beautifully drafted trust for your clients and frustrate part or all of the estate plan because the beneficiary designations are incomplete or inaccurate.
Take a look at the designations!! When it comes to the point in the client interview when the client says – “oh, don’t you worry about it, our designations are already done”, – don’t believe them!! Get a copy and review them yourself.
Here are a few things you may discover:
- There are no beneficiaries designated. If that is the case the plan and documents might set forth default beneficiaries such as “estate”. This can be a disaster if the document is a an IRA and the desired outcome is a stretch out of the IRA over the life of the beneficiary.
- There are no contingent beneficiaries. Again this can kick in unwanted default provisions if the primary beneficiary does not survive.
- The primary or contingent beneficiary is a minor who is unable to accept property. Think about naming the trustee(s) of the children’s trust or the custodian of a UGMA account.
- The designations have not been updated since major life events – i.e., a client’s divorce or a primary beneficiary’s death.
- The attorney drafted designation form that their last estate planning attorney drafted was never accepted by the administrator. Many attorneys prefer drafting their own vs. the plan administrator’s over simplified one line form. If you submit your own designation form confirm that is is accepted by the administrator.
- There is no beneficiary designation form. After the passage of time, confirm that the correct designation is on file. If a beneficiary designation form was done 5 years ago, insure that it is still on file with the administrator.
Remember!! Don’t rely on the client’s representations here! Check yourself!
Here is an excellent article for estate planning attorneys new to the practice. It was put together in August, 2009 by Lawyers Mutual, a North Carolina Insurance Company. It highlights common areas of estate planning malpractice:
- Failure To Gather Complete Information
- Failure To Draft What Client Wants
- Careless Drafting
- Changes in Law
- Failure To Revise Forms When Laws Change
- Failure To Consider Tax Consequences
- Failure To realize or Meet Deadlines
- Knowing Your Limits
- Failure To Consider Duty of Others
Sample engagement and disengagement letters are attached as examples.
Estate Planning Traps
Two revocable trust courses are planned for San Jose and San Francisco in March, 2016. Dates and venues to be announced!