WHY IS MY TRUST SO LONG?

by

Judith Sterling and Michelle Tucker, Attorneys at Law

Clients of quality estate planning attorneys often ask: Why is the trust you prepared for me so long? A trust is only as good as the certainty of the outcome it produces. A trust of only a few pages may be easier to read through, but it cannot address all the potential issues that may arise. It would be like being a mechanic and only bringing a hammer and a screwdriver. What if you need a wrench? What about a saw? A trust that omits clarifying language leaves those tools out of your toolbox. A trust that covers issues that might arise is like carrying a spare tire or having auto insurance. Even if you never need it, it’s still smart to have it because the inconvenience of having it and not needing it is small compared to the havoc of needing it and not having it.

For example, a substantial portion of a trust details the powers and duties of the trustee. Typically, state law does provide a set list of powers of the trustee that are a default. Do you want the trustee to be able to mortgage the house to pay for medical care for you or your children? The mortgage company may have a concern that the trustee does not have this power unless it is clearly stated in the trust. Do you want the trustee to be able to follow the recommendations of your investment advisor and buy a mutual fund or other investment vehicle? The brokerage firm may have a concern that the trustee does not have this power unless the trust language clearly allows it.

Another example is a lack of clarity regarding the beneficiaries. Suppose your trust states that you want your assets to go to John, Mary, and Susan. But, a host of issues have been left open. What happens if John dies before you? Does his share go to his descendants or to Mary and Susan? Should John’s descendants share his portion or get an equal share with Mary and Susan? What if some of John’s children were adopted by him, should they get a share the same as if they were his biological children?

There are countless other issues which a good trust document addresses. While these clarifications lengthen the document, they make it more likely that your wishes will be carried out without difficulty. This defuses fights among beneficiaries and helps ensure your wishes are respected. While the simplicity of a trust of only a few pages is enticing, it provides a false simplicity. An attorney focusing in estate planning can help you by preparing a trust that ensures that your wishes will get the respect they deserve.