SUMMARY OF ESTATE PLANNING DOCUMENTS
Your revocable living trust is an agreement between the “Trustor” and the “Trustee” to hold the trust assets for the benefit of the beneficiary of the trust. The Trustor is the person setting up the trust and the Trustee is the person who manages the trust. In order to form the trust, the Trustor transfers property to the Trustee to hold in the name of the trust. Since this is your trust, you are both the Trustors and Constance is the initial Trustee of the trust. Please remember that the trust must be written with the possibility that you might not always be the Trustee (e.g., in the event of your incapacity). The trust further provides that, for your joint lifetimes and the lifetime of the survivor, you are also the beneficiaries of the trust. These points are covered in the Recitals and in Article I of the trust.
Your trust is called an “A/B Trust” because the trust splits into two parts (“sub-trusts”) at the first death. The survivor’s portion of the trust passes to the survivor’s revocable part of the trust estate (called the “Survivor’s Trust”) and the deceased spouse’s portion goes to the irrevocable part of the trust estate (called the “Decedent’s Trust”); however, if the asset value of the deceased spouse’s estate is greater than the maximum amount which can pass estate tax free in the year of the first death, the excess amount of the deceased spouse’s estate goes to the Survivor’s Trust and there is no estate tax due. At the death of the survivor, the assets held in the Decedent’s Trust pass to the beneficiaries of the trust without tax and the assets in the Survivor’s Trust are taxed only to the extent the total value in that trust exceeds the estate tax exclusion available for the year of the surviving spouse’s death. This division allows the trust to use the estate tax exclusion amount at both deaths and thereby at least double the amount which can pass estate tax free to your heirs. Because this Paragraph is so tax sensitive, the language has to be very precise and must deal with technical details.
DECLARATION OF TRUST:
Under certain very limited circumstances, this Declaration could possibly be helpful after your death if you neglected to transfer a valuable asset to your Trust; it merely confirms that you intended to include all of your assets within your Trust. This Declaration is not a substitute for the requirement that you must transfer (“title”) your assets into the name of your Trust in order to avoid a potential probate of those non-Trust assets.
CERTIFICATE OF TRUST:
The Certificate sets forth the existence of your Trust and your unlimited right as Trustees to deal with any account or asset held in the Trust. The Certificate acts as a short version of the Trust Agreement and gives any third party all the information required from the Trust without getting into the dispositive provisions, which are (and should remain) confidential.
ASSIGNMENT OF PERSONAL PROPERTY:
This Assignment acts as the method of transferring all of your tangible personal property assets (generally such assets do not have a title or an ownership document) to your Trust (thereby avoiding the necessity or possibility of having to probate these assets).
Your Wills are commonly referred to as a “pour-over” will. Under the terms of the Will, any assets held by you which have not previously been transferred into your Trust will be added to the Trust at the time of your death (but may be subject to a probate administration in order to do so). The purpose of this is to make sure all of your assets (whether in the Trust or not) are distributed according to the dispositive plan set forth in the Trust.
THE DURABLE POWERS OF ATTORNEY FOR MANAGEMENT OF PROPERTY AND PERSONAL AFFAIRS:
The Durable Power of Attorney is a “general power of attorney”. This document is primarily intended to give your named agent (initially the other spouse is the primary agent) the power to deal with any trust or non-trust assets in the event of your incapacity. However, this document gives your agent broad powers to dispose of, sell, convey and encumber your real and personal property; if you have any concern about granting such broad powers, please contact me at once.
ADVANCE HEALTH CARE DIRECTIVES:
The Advance Health Care Directives give your named agents (initially the other spouse is the primary agent) the power to make medical decisions, sign consents and/or releases with hospitals and/or doctors [it conforms to the new Federal Laws (known as “HIPAA”) with regard to the releases]. It also acts as your “living will” for end-of-life decisions.
The Burial Instructions give you the ability to specify how you wish your remains to be dealt with (i.e., cremation or burial); to provide information of any prior arrangements and to designate the persons to carry-out your wishes.