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Do I need a lawyer to start a Survivor and Family Trust?
- Thread starter Stevebol
- Start date
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it sounds to me that the revocable trust created an A/B trust ?
your wording would have the "survivor" trust be that of your mom.
the "family" trust would be that of your dad's, which is now irrevocable.
who is the trustee of the family trust ? it does not necessarily need to be the same as the trustee of the survivor trust.
the trustee of the family trust is the person who needs to file for a separate tax id from the govt for the family trust.
at least out here in california. i suspect what i am saying applies to most states ?
your wording would have the "survivor" trust be that of your mom.
the "family" trust would be that of your dad's, which is now irrevocable.
who is the trustee of the family trust ? it does not necessarily need to be the same as the trustee of the survivor trust.
the trustee of the family trust is the person who needs to file for a separate tax id from the govt for the family trust.
at least out here in california. i suspect what i am saying applies to most states ?
Yes, I believe it's an A/B Trust. I'm the successor trustee. Everything goes to me. I have POA, etc...it sounds to me that the revocable trust created an A/B trust ?
your wording would have the "survivor" trust be that of your mom.
the "family" trust would be that of your dad's, which is now irrevocable.
who is the trustee of the family trust ? it does not necessarily need to be the same as the trustee of the survivor trust.
the trustee of the family trust is the person who needs to file for a separate tax id from the govt for the family trust.
at least out here in california. i suspect what i am saying applies to most states ?
My mother was deemed incapacitated shortly after my father passed and there is no Survivor or Family trust yet. The original trust say's the 'survivor' should set things up that way but she can't. Since all roads lead to me in the trust noone will help me. I just sold one of my parents 2 houses and the trust clearly states that the money from that should go into a family trust along with money from insurance policies. I'd like to know where this imaginary trust account is. None of the lawyers I talked to seemed to think it was very important.
Some of my options are, from what I can tell;
Distribute the assets in the trust and apply for title XIX, not that my mother really needs medicaid
Challenge the terms of the trust in a court. I don't even know who to call about that
Try to figure out how to set up a Survivor and Family trust
tranquility
Senior Member
You really, really, really need an attorney. There are numerous complications here and specific wording of the trust and specific state laws are implicated. This is not going to be a thing that slowly disappears into the maw of time. Someone is going to look at things at some point and they will look to you to make good if there is a problem. There are potential criminal issues here if you exceed your powers or use them incorrectly. Even if it is a fairly innocent mistake.
Some issues:
1. The elephant in the room is mom's incapacity. While you have a POA, that may not give you right to be the trustee of mom's trust. (Or the "family" trust either, if mom is the trustee and you the successor.), let alone the revocable trust that is funding them. Usually, in such a trust situation, the spouse is a co-trustee and is the sole trustee of the marital and survivor trusts (We'll just say A and B to not get caught up in nomenclature.) until death or is otherwise incapacitated. Now, you may need an attorney to help document the trusts' requirements for incapacity for mom so you can take over as trustee of the current trust and of the A/B trusts that will be funded.
2. Funding is another issue. Most living trusts can be a little fuzzy on the funding of the A/B trusts to give the surviving spouse the ability to manipulate things a little to best take advantage of tax and other issues. The problem here is that mom cannot make the choice as she is incapacitated. You will probably have to make the choice and the choice can benefit you and hurt mom's care if you are not careful. Other beneficiaries (if any) will care as will the state both for medicaid purposes and for elder abuse purposes.
3. Eldercare planning is related to 2. While you have some risk depending on how you act in funding; mom also has risk in assuring she gets the best care and quality of life in her remaining years. How the funding takes place can affect that while still giving the largest amount to pass through as possible.
Now is the time to step very carefully. Even in a fairly small estate, every choice here is ripe with risk. Don't play this one blind.
Some issues:
1. The elephant in the room is mom's incapacity. While you have a POA, that may not give you right to be the trustee of mom's trust. (Or the "family" trust either, if mom is the trustee and you the successor.), let alone the revocable trust that is funding them. Usually, in such a trust situation, the spouse is a co-trustee and is the sole trustee of the marital and survivor trusts (We'll just say A and B to not get caught up in nomenclature.) until death or is otherwise incapacitated. Now, you may need an attorney to help document the trusts' requirements for incapacity for mom so you can take over as trustee of the current trust and of the A/B trusts that will be funded.
2. Funding is another issue. Most living trusts can be a little fuzzy on the funding of the A/B trusts to give the surviving spouse the ability to manipulate things a little to best take advantage of tax and other issues. The problem here is that mom cannot make the choice as she is incapacitated. You will probably have to make the choice and the choice can benefit you and hurt mom's care if you are not careful. Other beneficiaries (if any) will care as will the state both for medicaid purposes and for elder abuse purposes.
3. Eldercare planning is related to 2. While you have some risk depending on how you act in funding; mom also has risk in assuring she gets the best care and quality of life in her remaining years. How the funding takes place can affect that while still giving the largest amount to pass through as possible.
Now is the time to step very carefully. Even in a fairly small estate, every choice here is ripe with risk. Don't play this one blind.
i do agree with the others that you should not do this by yourself, because your experience in this matter isnt high enough.
but to answer your question, there is no magic trust, nor is there any other trust document.
the original document serves as the trust document for both the survivor and family trusts, since this is the only document from the trustor.
the family trust is now irrevocable and needs its own tax id number(it is created because the trust document calls for it). the survivor trust will now be reported under your mom's social security number, along with anything else that may be in her estate but now owned by the trust.
then there is the process of funding the family trust.
once done, there will be assets in both trusts. and anything you want to know about either trust is contained within the one and only one trust document.
but to answer your question, there is no magic trust, nor is there any other trust document.
the original document serves as the trust document for both the survivor and family trusts, since this is the only document from the trustor.
the family trust is now irrevocable and needs its own tax id number(it is created because the trust document calls for it). the survivor trust will now be reported under your mom's social security number, along with anything else that may be in her estate but now owned by the trust.
then there is the process of funding the family trust.
once done, there will be assets in both trusts. and anything you want to know about either trust is contained within the one and only one trust document.
I already have a few attorneys. I need to take this to court. Since my mother was never fit to fullfill the terms of the trust- as in starting an A/B trust, I believe the trust has turned me into a pariah who's operating against a team of people.
The lawyer who wrote my will suggested that if I thought the terms of the trust were unfair then I should go to court. I'll talk to her tomorrow.
The lawyer who wrote my will suggested that if I thought the terms of the trust were unfair then I should go to court. I'll talk to her tomorrow.
I managed to straighten this out. I ran into a problem because I moved my mother from WI back to NY. For some reason the lawyers I was working with had strong objections to this. I found another lawyer. She wrote my will and she is going to handle my business for now. There's an issue as to whether my parents funded their trust and also whether the trust even needs to exist. My intention is to establish a trust and to fund it, with the help of an attorney, regardless of whether I am required to do it or not by law. It's simply for the purpose of organization.
hi steve,
from what i am reading, you are discussing 2 different topics.
one, a trust of your parents, that may or may not have ever been funded.
two, a trust for yourself, in which you are creating and will be the trustor. and no doubt the trustee.
is this correct ?
if your parents trust has assets in it, then you must do with them according to the instructions in the trust.
if your parents trust has no assets, then the trust document is simply a worthless piece of paper.
of course, you can do anything you want with a trust for yourself. (as long as it is legal !!)
from what i am reading, you are discussing 2 different topics.
one, a trust of your parents, that may or may not have ever been funded.
two, a trust for yourself, in which you are creating and will be the trustor. and no doubt the trustee.
is this correct ?
if your parents trust has assets in it, then you must do with them according to the instructions in the trust.
if your parents trust has no assets, then the trust document is simply a worthless piece of paper.
of course, you can do anything you want with a trust for yourself. (as long as it is legal !!)
as a sidenote, you mentioned that your mom is incapacitated.
the use of that term regarding trusts means that she is no longer able to function as trustee.
but i dont think of it as necessarily meaning that she is not of clear mind ?
if it turns out that assets of hers were never funded, i think it is at least possible that they could be funded in her trust. this assumes that she is capable enough of mind that she can appear before a notary and seem okay to the notary.
and the notary can come to your mom if your mom is not able to go to the notary.
just a thought.
the use of that term regarding trusts means that she is no longer able to function as trustee.
but i dont think of it as necessarily meaning that she is not of clear mind ?
if it turns out that assets of hers were never funded, i think it is at least possible that they could be funded in her trust. this assumes that she is capable enough of mind that she can appear before a notary and seem okay to the notary.
and the notary can come to your mom if your mom is not able to go to the notary.
just a thought.
I managed to clear this up today. My parents trust mentions an A/B trust. It's a useless paper because they never funded it. Tomorrow I finish with the bank in establishing a trust account in my parents name. It's just a place to put money from the sale of their assets and it has the magic word 'trust' attached to it. I didn't have to do it. Something told me it might be a good move to consult someone who commonly deals with estates that are considerably larger than my parents though my parents is fairly big. Now it's just a matter of having a particular attorney for a particular task. I need an attorney for realestate. The trust business is resolved.hi steve,
from what i am reading, you are discussing 2 different topics.
one, a trust of your parents, that may or may not have ever been funded.
two, a trust for yourself, in which you are creating and will be the trustor. and no doubt the trustee.
is this correct ?
if your parents trust has assets in it, then you must do with them according to the instructions in the trust.
if your parents trust has no assets, then the trust document is simply a worthless piece of paper.
of course, you can do anything you want with a trust for yourself. (as long as it is legal !!)
hi steve,
not sure who you are getting advice from, or what you are trying to accomplish ?
but i am not sure that you are proceeding wisely.
is this trust account at the bank really an account owned by your parent's trust ?
if so, the bank should have required you to give them enough of the trust document such that an account could be created.
and the bank should not have created an account for the trust without a signature from the trustee.
how is the actual bank account titled ?
are you planning on selling all her assets before she dies, and depositing the cash into this account at the bank ?
as far as i can tell, all of your parent's assets are now owned by your mom as an individual.
and as such will pass thru probate.
not sure who you are getting advice from, or what you are trying to accomplish ?
but i am not sure that you are proceeding wisely.
is this trust account at the bank really an account owned by your parent's trust ?
if so, the bank should have required you to give them enough of the trust document such that an account could be created.
and the bank should not have created an account for the trust without a signature from the trustee.
how is the actual bank account titled ?
are you planning on selling all her assets before she dies, and depositing the cash into this account at the bank ?
as far as i can tell, all of your parent's assets are now owned by your mom as an individual.
and as such will pass thru probate.
I'm getting advice from two attorneys at this time. I need another to close the deal on the house. The trust account I established is tilted after the tilte of the trust- XXXX-revocable trust. The bank copyied the portions of the original trust that they needed. Everything seems to be in order. Now the question is; why did I need to establish a trust account? Was it because realestate people had to have it done? My guess is that the bank and realestate people wanted the business and legally there was no reason for me to start the trust account. I was planning on selling most of my mother's assets now. I will consult with one of my attornies tomorrow about this. I believe i understand what a trust is at this point. If I'm lied to I will take some sort of action. I started keeping records 2 days ago of the time I spend on my mother's estate. There was no reason for my parents to establish and A/B trust. The estate is large but not 5.3 mil large. It's not even close. They didn't fund it themselves and my parents signed it in Aug. 2012.hi steve,
not sure who you are getting advice from, or what you are trying to accomplish ?
but i am not sure that you are proceeding wisely.
is this trust account at the bank really an account owned by your parent's trust ?
if so, the bank should have required you to give them enough of the trust document such that an account could be created.
and the bank should not have created an account for the trust without a signature from the trustee.
how is the actual bank account titled ?
are you planning on selling all her assets before she dies, and depositing the cash into this account at the bank ?
as far as i can tell, all of your parent's assets are now owned by your mom as an individual.
and as such will pass thru probate.
I see probate in my future.
TrustUser,
This came up at the realestate office. Everyone has a copy of the POA, Trust doc, etc... A question arose as to who to make the check out to for the sale of the house. I said make it out to my mother, it's her house. If people are creating work for me that's not neccessary then it's time to act. It took me 4 months to understand what a trust is. Now that I do it's time to get the show on the road.
This came up at the realestate office. Everyone has a copy of the POA, Trust doc, etc... A question arose as to who to make the check out to for the sale of the house. I said make it out to my mother, it's her house. If people are creating work for me that's not neccessary then it's time to act. It took me 4 months to understand what a trust is. Now that I do it's time to get the show on the road.
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