If I have a
trust, do I also need a will?
The type of
will that is used with a living trust is called a "pourover
will," because its purpose is to pour (transfer) assets into
the trust if the assets had not been transferred to the
trust previously. A pourover will doesn't have the usual
provisions that are found in a standard will and the only
beneficiary is the living trust.
What
are probate assets?
Any asset
that is in the decedent's name, and not in joint tenancy or
in a trust. Assets that are not subject to probate include
IRAs, 401Ks, and life insurance, assuming that a beneficiary
has been named to receive the assets involved. However,
these assets might be subject to probate if the beneficiary
listed is the "estate" of the decedent or if no beneficiary
is listed. Joint tenancy assets become the property of the
surviving joint tenant, regardless of the provisions of the
decedent's will or trust.
Do
trust documents become public information when someone dies?
California
law requires that notice be given to trust beneficiaries and
the decedent's heirs if all or part of the trust becomes
irrevocable after the death. The trust might become public
information is there is a court challenge to the trust, in
which case a copy of the trust will be filed with the court.
Who
should be chosen as the successor trustee?
Many clients
choose their children, either as co-trustees, or in a
specific order of succession. This can be a good choice,
particularly if the proposed trustee has some experience
with accounting or taxes. The person chosen as trustee must
be responsible and able to devote the necessary time to the
trust administration and management.
Who
receives my estate?
The
distribution plan for a trust can be the same as the
distribution plan in a will. You can give your estate to
your children, set up trusts for them if they are too young
to receive an inheritance, make charitable gifts, or make
gifts to beneficiaries outside of your family.
What
is a special needs trust?
The
beneficiary of a special needs trust is usually receiving
benefits from a government program for the indigent. Those
benefits will stop if the beneficiary receives an
inheritance because these programs have strict limits
regarding the amount of income and assets that a beneficiary
can receive. A special needs trust provides a source of
money that is held by the living trust and paid in small
amounts either to the beneficiary, or for his or her
benefit. The trustee will not pay any amount to the
beneficiary that would increase his or her income or assets
beyond the limits set by the government program and cause
the government benefits to stop.
Do I
really need to read all of the pages of the trust before I
sign it?
Yes,
although the trust may be lengthy, you are expected to be
familiar with its basic provisions and you should ask your
attorney for an explanation of any parts of the trust that
you do not understand.
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