TRUST TRAINWRECKS
I have had occasion recently to view several estate planning train wrecks resulting from poorly done “living trusts.” I have not inquired into who did the actual work. I suspect in some of the cases, it was the client themselves, either using a pre-packaged form or someone else’s trust as a model. Self done legal work, or self directed legal work is great deal like either doing your own surgery or telling your doctor how it has to be done. It may be ego pleasing at the time but it can leave your heirs in a tough spot.
Take for example the wealthy couple who drafted mirror image living trusts for themselves about fifteen years ago. The documents themselves were very good. I suspect that they were taken from a professional forms package used as a starting place by many attorneys. And, the documents did exactly what their drafters intended for them to do, that is formed a trust that will allow the estate assets to pass outside of probate.
But, the drafters did not take long term health care planning into consideration or consider the possibility that the government would tinker with look back periods and available assets for Medicaid eligibility. The first spouse died and everything passed normally. But, the remaining spouse now has dementia and will soon need full time institutional care. There is no way to move the assets around now that will save the estate. The family is looking at several years of expensive institutional care that will have to be paid for by the estate. Depending upon how long the second spouse lives, there may or may not be anything left of an otherwise substantial estate to pass to the heirs.
There are two lessons here. First, if you can afford long term health care insurance buy it, as much as you can afford as early as you can. Second, qualifying for Medicaid is getting harder and harder all of the time. Many Medicaid qualification decisions now have to be made as much as five years in advance. Aging people need to make these planning decisions in their late fifties or early sixties while there is still time and they are still sharp.
Just a few months before, I saw a very similar situation. In the 1980’s, a man and his wife executed so-called “Medicaid Qualifying Trusts.” The husband died and neither the wife nor the children bothered to inquire about the trust or changes in the law affecting it until Mom was diagnosed with Alzheimer’s. I had to tell the family that the revocable living trust they were counting on to save the estate was worthless and that they were looking at several years if institutional care to be paid for out of the fairly substantial estate until either the estate funds were exhausted or Mom died.
There are some well known attorneys who will tell you that for a substantial fee they can qualify a person for Medicaid and still allow them to retain their estate assets. I have read the law and just don’t see it myself. The Deficit Reduction Act of 2005 is very specific about asset transfers, annuities, look back periods, etc. Further, when I run across one of these cases, I always reduce my fee and refer the family out to a well respected estate planning expert in a well known firm for a second opinion. So far, the experts have agreed with my interpretation.
The primary perceived benefit of a living trust over a will is the fact that the assets pass outside of probate. But, probate is not the nightmare that trust salesmen usually portray it to be and frequently probate is the only solution to estate problems under a so called “living trust.” Take for example the couple that named two of their oldest children as co-trustees of the estate upon their death. Again, the documents themselves were very good. But, they did not use the common sense a first year law student would have applied when appointing people to a position of trust or authority. You never appoint an even number. You always appoint either one or three, or five. When the couple had both passed, the two co-trustees could not agree on the disposition of key estate assets and the only solution was to take it to court to force an accounting of the estate and distribution of the assets.
Or, take for example the couple that placed most of their property in trust but kept their residence in joint tenancy between themselves and their children. When both passed, the surviving children could not agree on the disposition of the home and had to go to court in a partition action to free the residence up for sale. Any middling smart attorney could have avoided either of these train wrecks with a three hundred and fifty dollar will and probably saved the estate tens of thousands of dollars in attorney’s fees and court costs.
Sitting down at your computer and filling in the blanks on a piece of software or a forms package can produce a good looking, legally binding will or trust. But, as the examples above show, the end product may not do your heirs any favors or even reflect your intentions.