Law Office of Robert Mansour
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VIDEO TRANSCRIPT:
Hi everybody, this is Robert Mansour. I'm a lawyer in the Los Angeles area, and one of my areas of practice is wills and trusts. One of the things that people often struggle with is they say, "Well, what is this living trust? It's so strange. What is a living trust?" Here's what it is: It's a piece of paper. All right? Actually, it's a lot of pieces of paper, but essentially it's a contract at the end of the day. It's a contract where you, or perhaps you and somebody else like a spouse, you outline what happens with all of your "stuff." The reason I use the term "stuff" is a lot of people freak out about their assets and they say, "Well, I can't do estate planning because I don't have an 'estate.' That's for really rich people." I say, "Look, if you have any stuff, bank accounts, a house maybe, some investments, that's your stuff, and you don't have to be a millionaire in order to do estate planning." So, a living trust is a contract where you outline what happens with your stuff, and you can decide who gets what under what conditions, and anything in your trust is governed by your rules. So, that means that you have to actually put things in your living trust when you create it. So, you have this document - it says who gets what, who's in charge of your stuff, who gets it when you pass away...who's in charge if you're incapacitated - All of these rules and regulations, but the living trust governs the assets that are in the trust. So, let's talk about what that means. You have to put things in your trust by changing title to your assets. So, you can't just create a living trust and everything "magically" is governed by it. You actually have to physically go to the bank and change title to your assets. So, if you have bank accounts, investment accounts, etc., any regular accounts, stocks, things of that nature, you have to change title to your asset right there in the middle. So, a sample would be "Sam Jones and Betty Jones, trustees of the Jones family trust dated December 14, 2008." When you do that, that asset is now in your trust, so it's in your trust. Now, who are the people who are the characters of the trust? The cast of characters, I call it. Number one cast of characters is the "Settlor." At the very top, you can see that. The Settlor is you. If there's more than one person like a husband and wife, you are the Settlors. Now, long ago they used to call this person the "Trustor" or the "Grantor." Those are some older terms that you might see (still very common terms by the way). So, what is this cast of characters or what does this particular character do? This particular character creates and controls the trust. So, that's you. Next in our line of characters is the "Trustee." The trustee manages the trust, and usually you are the first trustee unless there's a compelling reason for you not to be your trustee. The next persons or the people in this cast of characters are the "successor trustees." They're kind of like your "vice presidents," the people who take over in case you can't handle things anymore. These successors are people that you pick in advance. You can say, "I want my son Jimmy to be first trustee. I want my daughter Vivian to be second trustee, etc." This person steps in for the trustee and start managing everything in the name of the trust. Remember I told you, everything in the name of the trust is governed by it, so the successor trustees are in charge of everything that is in the trust. The final people involved here are the beneficiaries at the very bottom of the schematic. These are the people who benefit from the assets, and that's usually you. You're the initial beneficiary of your own trust, and then after you pass away, other people become the beneficiaries of your trust. For example, your children, or any other loved ones that you've decided to pass on your assets to. So, there you have it. That's essentially the people in charge of the living trust. Now, what we are doing is we are creating another way for assets to pass. So, at the very top you can see here I've indicated, you have essentially created a new way for your "stuff" to pass to others. So, in the first, on the left hand side of the screen, you can see that the initial way that things generally pass is through the probate system, which means that the court has to supervise the transfer of your assets from you to other people. Now that's not all assets, but many assets have to go through that system, and there's very expensive fees involved in that, taxes, etc., and finally everything goes to your heirs. However, it's a public process and it's very expensive. On the right hand side of the screen, you can see we've taken everything that is our stuff - our investments, our checking accounts, our heirlooms, our house, our bonds, our stocks, and these are passing through a new funnel called the living trust, the contract that we created, and everything passes through here and goes to the beneficiaries according to the rules that you've set out. Now the on the left hand side of the screen, that process is very cumbersome, very expensive, whereas on the right hand side of the screen, you've created a brand new way for everything to pass. The courts, and the government, and everybody's okay with this, so long as you set it up while you still have capacity to do so. So, there's a brief introduction to living trusts - that you're creating a new funnel for which your assets can pass, through which your assets can pass. If you'd like to discuss living trust, wills, powers of attorney, or anything else that has to do with estate planning, please don't hesitate to contact my office. My name is Robert Mansour. You can find my website at MansourLaw.com. Or you can call me at 661-414-7100. Thanks for taking some time for this brief lesson today, and we'll see you next time. VIDEO TRANSCRIPT:
Hello, everyone. This is Robert Mansour. I wanted to make a brief video today to explain that your living trust only governs assets that you actually own. I had a client recently and he brought this living trust to me, and he had been divorced for several years, and in his living trust he had all kinds of things written there. I think it was kind of a trust that he downloaded from the Internet or something like that, and he had a lot of assets listed in the trust that were real estate, bank accounts, things like that. Probably a good dozen pieces of real estate were listed in his trust, and he asked me to review these trusts and give him my opinion, and so I was reviewing the living trust and I found a lot of problems, but the biggest problem that I found, was that none of the real estate properties that were listed were actually his. They were in other people's names, in his former spouse's name, in another trust that's not his trust. I think it belongs to his former spouse. I asked him, I said, "What are you doing writing all of these things down in your trust?" He was, "Well, I want these things to go here and there, and I want them distributed to so-and-so, and I want this parcel of real estate distributed and so-and-so," and I said, "You realize there's no magic powers in a living trust?" You can't just write down any asset you want, and suddenly, that asset is going to magically go to so-and-so. I said, "You don't even owned these things. These things are owned by other people, so you can't just by virtue of listing them on some kind of a schedule or listing them in the trust, they're not going to magically go to those people when you die." He said, "So what's going to happen?" I said, "Nothing. Your living trust is meaningless. There is nothing in your trust that you actually own." He doesn't have the legal authority over any of those assets. This also happens when clients simply write down their assets. Maybe they own those assets, never mind assets owned by other people. They own the assets and they write them down in their trust, and they list them, and they mention them in the trust, and they think that by virtue of simply listing them in the document or writing them down on a schedule of assets of some sort, simply by writing them down or putting them inside of their binder, that that magically means that that asset is now governed by their trust. I explained, "No, no, no." First of all, you have to own the asset and if you do own the asset, you actually have to transfer the title on the asset to the name of your trust, so you have to file a new deed for your real estate. You have to go to the bank and tell them to move your account from your name into the name of your trust and there's paperwork involved. Please understand, simply by virtue of listing the assets in your living trust binder and writing them down, that doesn't mean anything. It's important and it's helpful, but that doesn't really mean that the asset is actually in the name of your living trust, and therefore, governed by it. That includes assets that you own, and certainly assets that you do not own, you couldn't even move them into your trust if you wanted to because they're not yours. There are no magical properties about a living trust, so please understand, properly titling your assets is very important as part of creating a proper living trust. Thank you very much for watching this video. I hope you found it helpful. A Certification of Trust is a document you should receive as part of your estate plan. This document basically provides "proof" of your living trust. Some banks, financial institutions, and insurance companies want to see a copy of it before putting your asset in the name of your trust. Some places call it an "Abstract of Trust" or "Certificate of Trust." Basically, this document provides a "summary" of your living trust because the trust itself is supposed to be a private document.
What does it say? It provides the names of the Settlors (the persons who created the trust - usually that's you!). Other common terms for "Settlor" are "Grantor" or "Trustor". Settlor is the more common and modern term although many banks and other financial institutions still use the older terms. If you are a married couple, make sure the Certification of Trust makes it clear whether one signature is necessary or two in order to manage the asset. For example, do you really want to require both husband and wife's signatures every time you make a deposit or withdrawal? The certification usually also lists who the successor trustees are. These are the folks you select to take over in the event you are unable to serve as the Trustee of your own trust (due to death, incapacity, or resignation). Then the certificate usually provides the official name of the trust. For example, "The Smith Family Trust" or "The Smith Family Revocable Trust" etc. I usually like to keep it short for practical purposes. Finally, the certificate usually provides a summary of the powers given to the trustees so the financial institution provides the trustees with the latitude necessary to manage the asset. Sometimes, the financial institutions will have its own certificate and they won't need the one you have. Either way, just make sure you do what is necessary to put your accounts in the name of your trust. Remember, not ALL assets go into your trust. Your attorney should give you guidance as to which assets go into your trust and which ones do not. If you don't have an estate plan and want to learn more, feel free to contact our office to see if we can assist you. Thank you very much, and we encourage you to explore our website for further educational information. One of the biggest mistakes I see when reviewing a client's existing estate plan is not really a "mistake" per se. It's more of a "misunderstanding." You see, the client may have the best trust in the world - a quality document that has all the bells and whistles. However, here is the misunderstanding - People think their living trust governs ALL their assets - as if it were a magical document whose pages transcend time and space and govern the distribution of their entire estate - simply by virtue of its existence. Creating a living trust is great. However, that's just part of the process. Now you have to put things IN it! Imagine the living trust is like a bucket. If nothing is in the bucket, then the bucket isn't really serving any purpose.
Here's the truth - A living trust ONLY governs and controls assets that are "in the name" of the living trust. That means the title of the asset is in the trust. For example, instead of a bank account being owned by "John Smith," it would say "John Smith, trustee of the John Smith Living Trust." That literally means the name on the asset has been changed. Now the asset is officially "in the trust" and therefore governed by the trust. Before, it was still in John Smith's name. Some people think that listing their assets in the trust (or on a separate schedule in their estate planning binder) is the same thing as putting assets in the trust. Let me make this very clear - simply listing assets in your trust or on a separate document is NOT the proper method of moving assets INTO your trust. By simply creating a living trust doesn't magically make it apply to all your assets. After I help clients create their living trust, I explain, "Look, we all know you have a living trust. We've been working on it. We've signed it. We created all kinds of provisions. But here's the problem - the bank DOESN'T know you have a living trust. The country recorder doesn't know you have a living trust. They are not clairvoyant. The president of Wells Fargo isn't going to wake up in the middle of the night and say, 'Oh my God...Mr. and Mrs. Smith created a living trust....we better retitle all their accounts!" That's something YOU have to do after you create a living trust. You have to go to the bank and change title on your accounts. You have to file new deeds with the county for your real estate (your lawyer can help you with that), etc. You have to put things IN THE BUCKET as noted earlier. You do so by changing title to the asset...not by listing assets on a piece of paper or in your living trust. There is work to be done...the change of title doesn't happen by magic or by good intentions. Keep in mind some assets will not necessarily be governed by your living trust. They pass by way of a designated beneficiary. Examples of such assets are IRA's, 401ks, and life insurance. When you opened those accounts, you filled out a beneficiary form. That form indicates who gets that particular asset when you die. Those companies don't care what your living trust says. What the form says is what matters. These types of assets are separate from your living trust. If you wrote "Mickey Mouse" on the beneficiary form for the life insurance policy, they are going to write a check to Mickey Mouse when you die. Again, they don't care what your living trust says. In some cases, however, the trust can be the named beneficiary. Still, no matter how many times I explain this to clients, there is still a huge misperception that what's stated in a living trust automatically governs ALL assets - which is the fundamental misunderstanding I explained earlier in this blog post. Creating a living trust is a great idea in many cases, but it's an even better idea to understand how that living trust works and what it does and doesn't affect. If you have a trust, and you don't understand how it works, what good is that? That's like buying a car without knowing how to drive one. Feel free to call my office if you have any questions about this blog post or if we can be of assistance with your estate plan. Our number is (661) 414-7100. VIDEO TRANSCRIPT:
Now let's talk a little bit about the living trust. One of the issues that I discuss with the clients is what are we going to do when the first spouse dies? So here we have a living trust at the top of the screen and then the first spouse dies. Now we have the living trust over here and the surviving spouse down at the bottom of the screen is scratching their head. They are in charge of everything in the trust in many cases, but one of the ultimate questions is will that person be subject to influences of others? In other words, if you leave that person with the keys to the kingdom and full control, can that person make changes to the trust? Can they change who the beneficiaries are? Can they use all the money? What are they allowed to do? And this is one of the issues that I discuss with my clients. One of the solutions is to talk about what are we going to do- are we going to split the trust into two? And this is a very common thing that people do, if it's appropriate and if it's something they would like to have. So the first option is we have no split at all. Just like we had in the first screen where everything stays in one trust. But we also could do something called an "optional split", which is the second option here on the screen. An optional split is where the first spouse dies and the surviving spouse has the option to split the trust assets into two. On one side you're going to have the survivor's trust, which is the trust for the surviving spouse. And on the other side you're going to put some assets in something known as the "decedent's trust". So basically you're going to have an optional ability to put some money aside into something called the decedent's trust. Now all of these trusts are addressed at the very beginning in the major trust document itself. So the person is not creating a completely separate document, they are just following the rules that established when I created the first living trust for the married couple. Now whether or not this decedent's trust is funded in our second scenario is optional. And there are a variety of reasons, tax and otherwise, that this might be a good idea for your family. Finally, there is the mandatory split. Now again, these are three common things that I talk about with my clients. Your situation may be different, and may call for something more complex. However, for most families these are the three scenarios that I generally discuss with them. So the mandatory split is where the first spouse dies and the second spouse has to split the estate into two portions. One for the surviving spouse and one for the deceased spouse, where certain money is carved aside and put into this pot over here that will ultimately go to the children. The nice thing about the decedent's trust over here is that is an irrevocable trust- it cannot be changed. Which for some families offers them a sense of comfort. The first and second options are very common. The mandatory split is very common when there is a major concern about how the surviving spouse would handle money. Also it's very common where there are children from previous relationships, and also when there is a certainly taxable estate- for sure it's quite certain that estate is going to be taxed. Which means that there's a lot of money at stake. Millions of dollars as I record this, and you may want to entertain this mandatory split in that particular situation. So as you can see there are different varieties and different variations that we have to discuss. Call (661) 414-7100 and inquire about an appointment today. Perhaps we can assist you with your estate planning questions. VIDEO TRANSCRIPT:
So let's talk about the four major tools in the toolbox. The first major tool is called "the living trust". And again, please understand this just general information- it may not apply to your situation, but it applies to many folks. So the living trust is the first major tool. It is the hammer in the toolbox, if you continue with that analogy. There are three major cast members, if you will, of the living trust. The first cast members are called the "settlors". The settlors are the people who create the living trust. In some older documents you might see terms like "grantors", "trustors"- the more modern term that we see these days is "settlors". The next cast member of the living trust are the "trustees". These are the people who manage the trust. So everything inside the box is managed by the trustees of the trust. And the next, final and third are the "beneficiaries". The beneficiaries are the third cast member, and these are the people who benefit from the trust. Now initially, the persons who set up the trust are often occupying all three roles- in fact, it is usually the case. They create the trust, they're their own trustees and they're their own beneficiaries. Now, let's move along. What are the main benefits of this living trust? What are the main benefits? And I tell clients that there are generally three main benefits to having this tool in your toolbox. The first one is, everything in the name of your trust avoids the court system. So if you put something in the name of your trust, and that's the key here, you must put it in the name of your trust. Therefore that asset will not go through the court system after you pass away. The second benefit is that anybody that you've listed as your trustee, your successor trustees, they can manage what's in the toolbox- I'm sorry, what's in the living trust. Everything in the trust is managed by your trustees, the people you choose in advance, not anybody who wants the job. And finally, everything in the name of your trust is governed by the rules of your trust. So if an asset is in the name of the Smith family trust, for example, that asset is governed by whatever the Smith family trust says. Call our office today at (661) 414-7100 to see if we can assist you with your estate plan. Remember, a living trust is only one tool in the estate planning toolbox. One of the biggest reasons that living trusts fail is because people do not "fund" their living trust. That means, you have to actually change "title" to all the assets that are going to be governed by your living trust. If an asset is not titled in the name of your trust, then the asset is not governed by the trust. It's that simple. There is no "half pregnant" - either something is in your trust and therefore governed by it, or it's not.
There are three major benefits to funding your living trust: First, all the assets that are titled in your living trust will avoid the court system. Basically, the courts don't have to get involved if you've taken care of things in advance by setting up a living trust. Second, all of the assets in the name of your trust can be handled by your successor trustees in the event you can no longer handle your own affairs. Third, all assets titled in the name of your living trust will be governed by the terms of your trust. What does it mean to be "titled in the name of your trust?" That simply means that you have to take the time to change the title on the asset. Therefore, a bank account would no longer be solely in your name. The bank account instead would reflect the name of your trust. You have to physically go to the bank and take care of that. When you get statements in the mail, you will see the name of your living trust instead of your name alone. This goes for single people and married couples. Also, all of your real estate needs to be in the name of your trust. Therefore, you actually have to physically execute a brand-new deed transferring the title from your name alone to the name of your living trust. As you can see, there is paperwork involved when transferring assets into the trust. There are other assets that need to be transferred to your trust as well. The bad news is it takes time to do so, but the good news is that once you've taken care of it, you can rest easy for the most part until you acquire a new asset. Once again, failure to find a living trust is one of the biggest reasons that living trusts fail. What good is a trust if you don't put anything in it? If you have any questions about this topic or other estate planning related topics, please feel free to call my office and arrange for an appointment. I recently had a client asked me how she could protect her son's inheritance from her daughter-in-law. Needless to say, this client did not have a good relationship with her daughter-in-law and suspected that the only reason the daughter-in-law married her son was because of the expected inheritance.
I explained to her that if we design her estate plan well enough, her daughter-in-law would not have to have any access to her son's inheritance. We could design the trust to distribute portions of the inheritance upon completion of certain events (like getting a college degree or attaining a certain age). The key is to NOT allow for automatic inheritance by the son. If her son inherits automatically upon her death, there is nothing we can really do to stop him from sharing his inheritance with his wife. After all, he could take all the money and simply give it to his wife. This is the United States - people are free to act as they wish - and there is only such much you can do "from the grave." He would probably do what most people do when they inherit - they take the inheritance and put it in a common joint account with their spouse. As such, nothing could stop the daughter-in-law from getting at the money. If her son inherits the money, puts it in a common account for a few years, the daughter-in-law would probably attempt to claim half that money if they were to ever divorce! Therefore, we designed a living trust that would protect the inheritance by keeping it in the trust and prevent distributions if there was any danger suspected by the trustee. In other words, the distribution to the son would NOT be automatic - it would depend entirely on the trustee's complete discretion. If the son is not "in control" of the inheritance, and the decision rests with someone else, there is a strong argument that the inheritance hasn't "vested" and is still sitting in the living trust. The ultimate question is whether or not the inheritance automatically "vests" in the son upon my client's death. If the trust simply says, "After I die, my son gets my estate" then there really is no safeguard, no layer of protection between the son and the money. If the trustee can indefinitely hold the inheritance in the trust, the son would have a very strong argument that the money is not vested. As such, the daughter-in-law would have a much harder time getting to that money. There are many ways that we can design a living trust to protect kids from unscrupulous daughters-in-law or sons-in-law. These solutions aren't always perfect, but they may be better than handing a child his/her inheritance outright. Feel free to contact my office if you like more information about this subject. Call (661) 414-7100 to arrange for a consultation. Hopefully we can design an estate plan that addresses your concerns. I get calls from clients all the time who think that a living trust's purposes is to hide assets from creditors, the IRS, the government etc. I tell those clients that if that were true, there would be a line out my door with clients looking to establish living trusts. I tell my clients that if hiding assets and avoiding the IRS are their main concerns, a living trust is not going to help them. So if your friend Johnny told you a living trust will protect your from creditors, bankruptcy, or lawsuits, think again.
You see, a revocable living trust is still managed and controlled by you. As long as an asset is within your reach and within your control, you arguably have access to it and cannot "hide it" from others. Now we can indeed design a living trust that protects the inheritance for your heirs (i.e., your children, spouse, etc.), but living trusts are not really designed to be asset protection devices for the person setting up the trust. They do have money-saving and protective features, but not in the "hide my assets" sense. There are some trusts that are irrevocable and managed by others that you can set up, but irrevocable trusts managed by other people aren't always the best solution if you are looking to protect yourself. Why would you want to lose control over your assets? I advise clients who are interested in "protection" to explore business structures like corporations, LLCs, and other entities that can protect their families and their assets. Those entities, if run properly, can really provide a great deal of protection. Also, I encourage clients to get adequate liability insurance, both premises liability and professional liability, in case there are any claims against them. Most people making a claim against you would rather take a monetary settlement than spend years in court trying to acquire your assets. A living trust is designed so that your wishes regarding your estate can be honored. A living trust also helps avoid the probate court system. You can protect your assets for your heirs and even for yourself. However, it should not be viewed as an asset protection device when it comes to creditors, bankruptcy, lawsuits, divorce, etc. Protect yourself in other ways if that is your main concern. If you want to discuss setting up your own estate plan and discussing how one can help you and your family, please call my office for a consultation. While it is very important to make sure most of your assets are "IN YOUR TRUST," there are several assets that typically don't belong "IN THE TRUST." These assets usually pass by way of a designated beneficiary.
These are usually tax-deferred accounts. Examples of assets that do NOT go into your trust are IRAs, 401k, 403b, and pension plans. These assets pass by way of “beneficiary” pursuant to contract with the particular institution. In most cases, you should name your spouse as primary beneficiary (or anyone you want if you are single) and then name your children as secondary beneficiaries (or anyone else you want if you don’t have children or wish not to include them). If your children are too young or you have significant concerns as to how they would handle such assets, you can name your trust as secondary beneficiary (sometimes called the “contingent” beneficiary). You may want to use the specific sub-trusts designated for your children so each child’s age will govern the amount necessary to withdraw. Otherwise, the age of the oldest trust beneficiary may govern the distribution to all beneficiaries. If you name a child directly, one important question to ask these institutions is “What happens if one of my children dies?” Some companies will give 100% to the remaining named children. Some will give that deceased child’s portion to any grandchildren (children of that child). This is known as “right of representation” or “per stirpes” (Latin). In other words, they may have an internal policy about this issue. In some cases, you may find a place on their beneficiary form where you can indicate your preference. If they don’t have any such thing on their form, ask them if you could write it in. Some companies won’t allow you to do so, and in that case you just need to make sure you change your beneficiaries if someone was to pass away. As a general rule, naming human beings as beneficiaries of such assets is preferred to naming a trust, because naming a trust can lead to unnecessary complications and burden for the trustees. Make sure you discuss your options with your attorney and your financial/tax professionals. If you need help creating an estate plan for your family, call our office at (661) 414-7100 to make an appointment. |
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