When you set up a living (revocable) trust — you (or you and your spouse if married) are the Trustee(s).

In the trust you name Successor Trustees to take over when you are incapacitated or deceased. This raises the important questions:

 

• Who do you want to make the decision that you are no longer capable of handling your own affairs (and thus the Successor Trustees will take over)?

 

Considerations:
Do you want one person such as your spouse to make that decision? More than one person? Your spouse and children? Your spouse and doctor? Two doctors? The choice is up to you, but think it through carefully.)

 

• Your trust will always name a Successor Trustee, but have you considered Co-Trustees or an independent Trustee?

 

Considerations:
For example, if you and your spouse have children from different marriages, you may want to ensure that neither set of children has power over the other set of children. One way to try to prevent this is to make sure there are always two Successor Trustees (serving as Co-Trustees) for each set of children or an independent Trustee (such as a bank) so that neither set of children can be cut out of an inheritance.

 

• Have you decided to whom to leave family heirlooms?

 

Considerations:
This situation can cause real friction in the family. If you’ve promised your mother’s wedding ring to a daughter or a family portrait to a son, you need to specify these distributions in your trust.

 

• If something should, heaven forbid, happen to your whole family, have you named alternate beneficiaries?

 

Considerations:
If you do NOT name alternate beneficiaries to those stated in your living trust — your estate planning attorney may designate your “heirs at law” as your alternate beneficiaries. This means that state law decides who will inherit, which could result in a cousin you never heard of, or even hate, being named your heir. Instead, you should ensure that your estate planning lawyer puts in your living trust specific family members, friends, and/or charities as alternate beneficiaries to cover this unlikely, but possible, situation.

Have a question? Contact Mitchell R Miller.