THE DOS AND DON’T OF LIVING TRUSTS
DO get a Living Trust if you own real property. The reason? A Living Trust helps you avoid Probate. Even if you have a will, you’ll still go through Probate, which is the court-supervised process of distributing your assets to people (or organizations) you name if your will, or the next of kin (called “heirs at law”) if you don’t.
However, if you have a Living Trust at the time of your death, the process is usually much smoother: because of the budget constraints, and all of the litigation that fills the Courts, probates take MUCH longer than Trust Administration (carrying out your wishes after your death), as Trust Administration is private, and does not involve the Court.
Because of this, if you have mortgages, or especially reverse mortgages, there is a distinct risk of your house falling into default after your death. And the longer that the property is tied up in probate, the bigger the risk of your house being sold at a foreclosure sale. On the other hand, a trustee has the authority to act on your behalf immediately after your death.
DO NOT simply entrust your best friend or favorite relative to handle your affairs after your death. Just because someone is your good friend, or favorite relative, doesn’t mean that they’re going to be responsible, especially on behalf of others, in the wake of your death. I’ve litigated many cases where someone trusted a friend to be a Successor Trustee (or executor), only to find that person later stealing money from the trust, living in the Property, or not winding up their affairs after death.
What you’re looking for is someone who is responsible, AND someone who can be trusted with money, even when it seems as if no one is looking.
DO get a Living Trust done by an Attorney who specializes in Estate Planning AND Estate Litigation. There are plenty of paralegals or non-attorneys that do Living Trusts. There are Attorneys that do Living Trusts. You can even do a Living Trust yourself. But there are few Attorneys that do Living Trusts AND Estate Litigation.
This is important because non-attorneys, paralegals and Attorneys that don’t ordinarily do Estate Planning usually do Trusts incorrectly. And, as a litigator, I’m usually contacted by people who wouldn’t ordinarily inherit if the Trust was done correctly. But when the Trust is done incorrectly, I’m able to either invalidate the Trust, or obtain a settlement for someone who the Trustor (person who had the Trust done) didn’t want to inherit. And usually, it’s a LOT of money. Unfortunately, this can be you, if you trust the wrong person to draft your Trust.
Lastly, it’s a big plus when a person does estate planning AND estate litigation. Attorneys that only do Estate Planning draft Trusts, but usually aren’t in the know as to the latest developments in the field. Because of that, they sometimes draft provisions in Trusts that simply are either outdated, or sounds good from a theoretical standpoint, but don’t actually work well in real life.
Here at the Law Offices of Keith J. Moten, my experience as an estate litigator helps me give you practical advice (such as above) as to who to appoint, what to avoid, what to do and not do. I do this because it is precisely these mistakes that lead to estate litigation—beneficiaries arguing over who should get what, removing bad Trustees, and all of the finer technicalities about Living Trusts. You can’t get that with someone with no estate litigation experience.
For these tips and more or if you want a Living Trust done, revised, or are facing a potential estate litigation, contact The Law Offices of Keith J. Moten at (310) 348-8138 for a free consultation.
The Law Offices of Keith J. Moten. Preserve Your Legacy, Protect Your Inheritance.