Living Trust Planning | Estate Planning Attorney

Tag: Living Trust

Estate Planning Before You Travel: Why It’s Critically Important
Vacations can be the perfect opportunity to relax, disconnect from work and responsibilities, and enjoy your spouse, partner, kids’ or friend’s company. But before you head off on your next getaway, there’s something else you should consider doing that might not sound quite as fun—creating an estate plan. While it may not sound like the most thrilling way to spend a day, here are some reasons why you need to think about your estate plans before you travel.
- An estate plan ensures any medical decisions needed while away from home will be handled according to your wishes, and with as much ease as possible, no matter what the rules are where something happens. If you fall ill or become injured and can’t make medical decisions for yourself, your estate plan will ensure that decisions will be made by the person you choose, and with your indicated desires for your care at the forefront.
- Without an estate plan in place, your family or friends could have a heavy lift to get you back home, locate your assets, keep your bills paid, and even ensure your children get taken care of by the right people in the right way.
- Lastly, an estate plan ensures that any debts or liabilities are taken care of properly in case something happens while on vacation. This can help prevent creditors from trying to collect from surviving family members after the fact — something no one wants to deal with during such a difficult time.
Yes, Even Married Couples Need an Estate Plan

You might think that because you’re married, you don’t need an estate plan. Or you might even think your will is enough and would just handle everything. But that’s generally not the case.

Even if you’re married, you still need medical powers of attorney, making it clear that you want your spouse making medical decisions for you, or even potentially adding in additional decision-makers. You still want a living will to give clarity on how you want medical decisions made for you.

Finally, if you have dependent children, you want to ensure you’ve made it as easy as possible for their care needs to be continued by the people you want, in the way you want. Without a plan in place, decisions around their care could be tied up for months, including access to the financial assets their caregivers would need to ensure they have what they need along the way.

The Benefits of Working With an Attorney

While you can create an estate plan without legal assistance, there are serious risks to the people you love, if your plan isn’t completed, not updated after it’s been done once, or not completed properly. The only real guarantee for the people you love to have as much ease as possible, is if you work with an experienced attorney specializing in estate planning, and particularly Life & Legacy Planning. We understand what needs to go into a thorough and complete estate plan — as well as the potential pitfalls or issues that could arise due to your unique personal and family dynamics — so you can rest assured knowing everything is being taken care of properly before you embark on your trip.

We can advise you on other important documents such as Wills, Trusts, powers of attorney (POA), health care directives (HCD), and guardianship paperwork (for minor children) so you can make informed decisions based on what you want to have happen if you become incapacitated or die. All these items should be considered when creating an effective estate plan — especially when one or both parties will be traveling outside their home country at any point.

Don’t Let a Lack of Planning Dampen Your Vacation Spirits!

Taking a few simple, yet critically important, steps now can save you and your family considerable headaches down the road if anything were ever to happen while on the road—not only do we want you to enjoy each moment spent together, but we want peace of mind knowing that whatever comes your way is handled according to your wishes!

We can help put a plan together now so that you don’t forget about this important task before packing up for your next adventure. Making sure all your affairs are in order will ensure nothing stands in the way between you and enjoying time together! Contact us today to get started.

This article is a service of Jeannette Marsala, Personal Family Lawyer. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, during which you’ll get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.
March 27, 2023
Why Everyone Needs to Keep Their Estate Plan Updated

As the world and its laws continue to evolve, everyone needs to keep their estate plans up-to-date. An estate plan is a set of documents, such as a will or trust, that dictate how assets will be distributed upon death or incapacity. An individual’s current legal and financial situation should be considered to create a comprehensive estate plan tailored specifically to their needs.

Ensure Your Wishes Are Respected

The primary reason to update an estate plan is to ensure that an individual’s wishes are respected upon death. For example, suppose an individual has recently acquired valuable property or has had changes in family structure (such as marriage or children). In that case, updating the documents that outline how assets should be distributed is important. If the documents aren’t updated, this could lead to disputes between family members and legal complications when probate occurs. Additionally, if laws change at the state or federal level, those changes need to be incorporated into the existing estate plan to remain valid and effective.

Ensure Your Loved Ones Are Protected From Tax Implications

Another reason for updating an estate plan is for future tax planning purposes. Without proper planning and asset allocation, taxes can significantly reduce the amount that beneficiaries receive after one’s death. Additionally, some states have transfer taxes on certain assets (such as real estate), which must be factored into one’s estate planning decisions. In addition, changes in federal tax law may affect whether other taxes, such as capital gains tax, applies at the time of death or while transferring assets during life – thus providing additional incentive for individuals to review their plans regularly with their advisors and make necessary updates when necessary.

Ensure Your Medical Decisions Are Handled With Care

Estate planning also encompasses contingency plans in case of incapacity due to illness or injury – commonly referred to as disability planning. This means creating end-of-life documents such as Advance Health Care Directives, which list specific instructions about medical treatments that should be administered if certain conditions arise – such as if a person suffers from dementia or a traumatic brain injury and can no longer make decisions on their behalf. This planning can provide peace of mind knowing that an individual’s wishes will be respected even if they cannot make decisions themselves due to illness or injury.

Ensure You Leave a Legacy For Your Loved Ones

Finally, updating an estate plan allows people to express gratitude for those who have helped them over the years – whether it be through providing advice on financial matters or being there simply by offering emotional support during difficult times – by including them in a legacy interview with our firm. Specific instructions can also be included in your plan regarding how charitable donations should be handled after death – enabling individuals who wish to donate part of their wealth to leave behind a lasting legacy that furthers causes they believe in long after they pass away.

Keep Your Estate Plan Up-To-Date

In conclusion, having an up-to-date estate plan helps ensure that your wishes are respected upon incapacity or death; protects you from unnecessary taxes; helps with disability planning; and allows you the chance to express appreciation towards those who have had a positive impact on your life while still alive. Therefore, estate plans should consider current circumstances and anticipate future events to avoid any potential problems. We hold regular reviews of your estate plan through the stages of change in your life or every three years. Contact us today with your questions about your current plan and if you need an update.

This article is a service of Jeannette Marsala, Personal Family Lawyer. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, during which you’ll get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

March 20, 2023
Obtaining a Power of Attorney for Elderly Parents
Making important decisions for aging parents can be a challenging task, but power of attorney (POA) can provide peace of mind and clarity in times of need. POA enables individuals to make crucial decisions on behalf of their parents, such as managing their finances or making medical decisions, when they’re unable to do so themselves due to age or illness.

While it may be difficult to approach this topic with your parents, having these discussions early on can help ensure that you follow their wishes if their health changes over time. Starting the conversation with empathy and understanding can make all the difference.

In this article, we’ll explore how to obtain power of attorney for elderly parents and provide helpful tips on how to approach these discussions with warmth and care. After all, our ultimate goal is to ensure that your aging parents receive the best possible care and support.

What’s a POA?

According to the American Bar Association, POAs are legal documents, which vary between states, that provide a person, or several individuals, with the power to perform actions on behalf of someone else. The individual with a POA is an agent, whereas the principal refers to the person who is having their affairs managed by other individuals. Agents can only perform actions outlined within the POA document. Moreover, if someone agrees to a POA, they can still make their own decisions, providing they can still do so coherently. This means the agent cannot make exclusive decisions on behalf of the principal.

POA Types

Below is more information regarding the different POA types:
- General: For this POA, the agent can manage the principal’s affairs for a specific period, and the principal may revoke this at any point. These automatically finish if the principal becomes incapacitated and are common when an individual can still see to their affairs but prefers that someone else does this for them.
- Durable: These POAs continue after the principal becomes incapacitated and are more common when someone cannot manage their affairs. They can conclude in many ways, including once the principal dies or if the agent completes the conditions within the POA document.
- Springing: The terms in this POA don’t take effect unless the principal becomes incapacitated. For this POA, the principal remains in control of their affairs until they lose capacity.
- Medical: These POAs allow agents to make the principal’s medical decisions. They last until the principal is competent and might also expire after a certain period mentioned in the document.
- Limited: These limit the agent’s ability to make decisions regarding certain tasks as outlined in the POA document, such as paying bills or selling a house. Limited POAs are usually temporary and end when the principal loses capacity.
Why and When to Consider a POA For Your Aging Parents

Here are the common reasons why individuals may consider getting a POA:
- Finance issues: POAs enable individuals to continue paying their parents’ bills and manage their finances when their parents struggle to fulfill these obligations.
- Serious illness: Having a POA for an elderly parent can be helpful as it allows them to focus on getting better and reduces the stresses associated with managing their affairs.
- Memory issues: Individuals commonly obtain a POA to manage their parents’ affairs if they develop dementia. It’s helpful to note that it’s necessary to obtain the POA before the parent loses their capacity.
- Surgery: When an elderly parent is undergoing surgery, it might be a good idea to obtain a POA so individuals can make decisions on their parents’ behalf and manage their affairs until they’ve fully recovered.
- Frequent travel: Some elderly parents like to travel frequently, so POAs can be useful here for ensuring their affairs remain in order while they’re away.
How Do I Choose a POA For My Parents?

When considering a POA for your aging parents, there are several things to keep in mind. The most crucial factor is trust – you must choose someone you can rely on to make decisions in your parents’ best interests and follow their wishes.

While family members are often chosen for this role, it’s important to consider whether they’re the best fit. If you think an objective outsider may be better suited to the task, such as a lawyer, accountant, or financial institution, this is also an option, although it may come with additional costs.

Before agreeing to be a POA for your parents, it’s essential to have a thorough discussion with them to understand their needs and preferences. Different types of POAs have different levels of responsibility, and it’s important to clarify what your parents expect from you. If your parents need help with medical decisions, for example, this will require more involvement than if they only need assistance with financial decisions.

Finally, it’s essential to understand the financial implications of becoming a POA. You’ll need to keep your finances separate from your parents’ and be prepared to justify any decisions you make to avoid legal issues.

Choosing a POA for your aging parents is a significant decision, and it’s essential to approach it with care and sensitivity. By having open and honest discussions and seeking objective advice, you can ensure that your parents receive the best possible care and support.

Contact Us To Learn More About Obtaining A Power Of Attorney For Your Elderly Parents

If you have elderly parents, it’s understandable that discussing power of attorney (POA) may be a sensitive topic. However, starting these discussions as early as possible can bring peace of mind and clarity in the future.

When approaching these conversations, it’s important to consider your parents’ health and well-being. Let them know that you’re there to support them and that you will only use the POA powers if it’s absolutely necessary. It’s a promise that can help reassure your parents that you have their best interests at heart.

Additionally, it may be helpful to seek the guidance of an experienced estate planning attorney. They can provide objective advice and alleviate any concerns that your parents may have. We understand that this is a difficult process, but we’re here to help. Please feel free to contact us today to learn more about how we can assist you and your family.

This article is a service of Jeannette Marsala, Personal Family Lawyer. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, during which you’ll get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.
March 13, 2023
Your Rights as the Parent of a Young Adult – What You Need to Know When a Medical Crisis Hits

As a parent, you’re quite accustomed to managing your children’s legal and medical affairs, as circumstances require. If your child requires urgent medical attention while away from you, a simple phone call authorizing care can do the trick. But what happens when those “children” turn 18, now adults in the eyes of the law, and need urgent medical attention far from home?

The simple fact is that the day your child turns 18, he or she becomes an adult and has the legal rights of an adult. This means that you lose your prior held rights to make medical and financial decisions for your child unless your child executes legal documents giving you those rights back. Without the proper legal documents, accessing medical information and even being informed about your adult child’s medical condition can be difficult and in some cases, impossible.

When sending kids off to college, it’s crucial to consider the legal implications of an accident or medical emergency on your ability to stay informed and participate in important decision-making for your young adult child. Medical professionals are responsible for following the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA), which ensures medical privacy protection for all adults. Once your child turns 18, they are (from a legal perspective) no more attached to you than a stranger, making communication about medical issues is tricky if your child is incapacitated and not able to grant permission on their own.

In most states, these three legal documents can make all the difference when a medical crisis strikes and your young adult child is far from home. When utilized together, they can ensure a parent or trusted adult be kept in the loop about care and treatment when a child over the age of 18 experiences a medical event while they’re away at college, traveling, or living far from home. As with most legal documents, the law varies from state to state, so be sure to seek out the counsel with us to determine which forms suit your situation best.

HIPAA

Essentially like a permission slip, this authorization allows your adult child to specify who is allowed access to their personal medical information. Specific information can be specifically withheld, such as drug use, sexual activity, and mental health issues so that additional privacy can be protected if desired.

Medical Power Of Attorney

Designates an agent to make medical decisions for the young adult. This could be you, as the parent, or another trusted adult. Each state has different laws governing medical power of attorney, requiring different forms. Be sure to check with us to be sure you’re following the laws of your state and the state where your child resides.

Durable Financial Power Of Attorney

Allows the parent or another trusted adult to take care of personal business if the adult child cannot do so. This form would allow the parent to take care of such important tasks such as signing tax returns, paying bills, and accessing bank accounts for the incapacitated adult child. A durable power of attorney is powerful and gives broad access to sensitive financial and legal decision-making and should only be given to a trusted relative or friend.

The milestones come quickly once children graduate high school and enter the big, wide world away from home. As your family navigates these significant rites of passage, consult us to determine the steps necessary to ensure excellent communication and peace of mind when a medical emergency arises. Consider including your young adult children in the process. We’re here to help your family establish the legal and medical protections needed to live your desired lives. Contact us today to schedule your Family Wealth Planning Session for your family and get the right documents in place for your kids.

This article is a service of Jeannette Marsala, Personal Family Lawyer. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, during which you’ll get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

March 6, 2023
Keep the Government and Lawsuit Happy Opportunists Away from Your Children’s Inheritance

If you have a current estate plan, I’ll bet you plan to leave your assets to your children outright and unprotected by age 35, or maybe a little later. Go take a look at your estate plan, and see what it does right now. And, if you don’t have an estate plan, and you have kids or other people you care about, contact us today and let’s get that handled for you.

If you do have a plan and it distributes your assets outright to your kids — even in stages, over time, some at 25, then half of what’s left at 30, and balance at 35 (or something along those lines), you’ve overlooked an incredibly valuable gift you can give your children (and the rest of your descendants for generations); a gift that only you can give them. And a gift that, once you’ve died and left them their inheritance outright, is lost and cannot be reclaimed.

Leave your kids a nest egg protected from lawsuits, divorce, and estate taxes.

While you may think to yourself, “my kids’ inheritance doesn’t need to be protected. They aren’t going to get sued.” You may be right, but you may also be overlooking one of the most common “lawsuits” that causes inheritances to be lost everyday, and that’s divorce. If you want to protect the money you’re leaving to your children from their future divorces, even if you love their spouses or expect you will, in the future, you can easily do so using a protected trust.

And, if your child is ever involved in a lawsuit, for example, a simple car accident, or if a business transaction goes bad, what you leave to your child can be protected from all future lawsuits or claims against them.

The best part is that if your child has their own taxable estate when they die, your planning now could save your family 40 cents on every dollar (or more) handed down from one generation to the next.

Save your family up to 40 cents on every dollar — currently — at each generation.

As of 2023, the current federal estate tax rate is 40% — meaning that every dollar passed on over the estate tax exemption rate is taxed at 40%. And it has been as high as 55%. On top of that, many states have estate taxes as well.

This all adds up fast, and can decimate your family’s financial legacy over time. For every million dollars you leave outright to your children, if your children have a taxable estate when they die, could result in your grandchildren receiving only $550,000, with $450,000 going to the government … unnecessarily.

So, if you want to know that everything you’ve worked so hard to create will stay in your family for generations to come and not be lost to outsiders, leaving your assets to your children protected in a trust we call a Lifetime Asset Protection Trust, instead of outright, is the way to go. And, it can be easily built into your existing estate plan or trust. You just need to ask us to help you get a Lifetime Asset Protection Trust added to your plan.

But how will my kids get to use what I leave to them?

Here’s the best part about leaving your assets to your children in a Lifetime Asset Protection Trust. Not only is what you leave protected, but your children control what you leave them when you decide they’re ready.

After your death, the assets you leave behind will pass to your children (and your grandchildren, great-grandchildren, and so on for successive generations) in a Trust that your child can control, as the Trustee of the Trust. You can decide when your child is mature enough to act as a Trustee.

As the Trustee of the Trust, your child decides how what you’ve left is invested and what to do with the Trust assets. And your child will even be able to determine the amount of control vs. the amount of asset protection he or she wants based on his or her specific circumstances.

Is this still important if I don’t have much money?

If you only leave your children a small amount of money, this is still incredibly valuable for protection, if you’re leaving assets that will be invested and grown, and not just spent right away on consumables. Some might say it’s even more important because your family has less to lose to taxes, lawsuits, and divorce each generation. And the impact of such losses is much greater.

A mere $10,000 protected now can become millions for the people you love for generations to come.

Imagine that you leave just $10,000 to your child in a Lifetime Asset Protection Trust, and instead of spending that $10,000 or losing it in a divorce, they invest that $10,000 in creating their own business inside their trust, and then grow that business into a million dollar or multi-million dollar venture because of how you chose to leave your child that $10,000 gift … and it’s fully protected for generations.

Secure the future of your family today by speaking to us. We review estate plans and inherited funds with you, ensuring that all legalities are in place so generations can enjoy the benefits according to your wishes. Get peace of mind now – contact us today to get started.

This article is a service of Jeannette Marsala, Personal Family Lawyer. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, during which you’ll get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

February 27, 2023
5 Reasons Why Shopping for the Cheapest Estate Plan Could Leave Your Family with an Unintended Mess

In most cases, from the most sophisticated business people with the highest net worth to those just starting in the workforce and on their path to adulthood, you very likely don’t know how to evaluate estimates when shopping for an estate plan.

Shopping for an estate plan based on getting the lowest cost plan possible is often the fastest path to leaving your family with an empty set of documents (maybe in a beautiful binder, but not worth the paper they’re written on) that won’t work for your family when they need it.

Unfortunately, we see the negative effects of cheap estate planning when family members come to us during a time of grief with that fancy binder that sat on the shelf for years sending out signals of false security, full of out-of-date estate planning documents, and find themselves stuck in what could have been an avoidable court process, or even conflict when that’s exactly what their loved one thought they had paid someone to handle for them.

Here Are 5 Reasons Why Shopping For The Cheapest Estate Plan Is Likely To Leave You With A Plan That Won’t Work For Your Family… And Could Leave Them With A Big Mess Instead.

01 | The least expensive plan isn’t worth the paper it’s written on once you’ve left the attorney’s office — your life changes, the law changes, and your assets change over time; your plan needs to keep up with those changes.

And the truth is a lawyer can’t afford to provide anything more than documents that won’t get updated when you only pay a few hundred dollars for a plan. The business model doesn’t work for the lawyer and won’t work for you.

An attorney who has built a practice specifically to serve your family in their best interests cannot make a living selling $399 (or even $1,500 or $2,000) Wills, Trusts, or estate plans. Only insurance and financial professionals getting paid commissions to sell your family’s annuities and life insurance products can make a living selling cheap documents. Buyer beware!

02 | “Estate planning” is often sold by financial professionals who want to get their hands on your “assets under management,” not necessarily prioritizing doing right by your family or keeping the people you love out of court or conflict. They may not even know how to keep your family out of court or conflict.

When your estate plan has been sold to you by an investment advisor as part of your financial advisory and retirement support services, their focus isn’t on understanding the relational and legal dynamics of families, which can flare up after the death of a loved one. As “relational lawyers,” we’ve got specific expertise and training in pre-emptively identifying potential for family conflict and heading it off before it becomes an expensive problem. We’ve seen it all when it comes to families getting stuck in court and we can help you design a plan that prevents your family from court and conflict.

03 | Forms and documents won’t be there for your family when you can’t be — you want to leave your loved one’s relationship with a trusted advisor with whom you have built a relationship during your lifetime and who has met them and they already trust.

Working with a lawyer who focuses on “the best documents” at the “lowest price” or doesn’t charge enough for their services cannot provide more than form documents. These days, especially with the rise of AI, template form documents are free for anyone to use, which makes it difficult to know how those documents are handled when it comes to protecting the people you love.

Shopping around for the least expensive plan may get you the cheapest documents, but those documents won’t be there to guide the people you love when they need someone to turn to in a crisis or grief. We will be.

04 | You get what you pay for. It’s your family that will pay the price. Traditional law firms usually use generic forms and documents. These are called “trust mills” and are a firm that drafts plans but doesn’t ensure assets are owned correctly or stay up to date over time. You might think that’s malpractice, but it’s not. It’s common practice, leaving your family at risk if and when something happens to you!

05 | An estate plan isn’t a set-it-and-forget-it kind of thing. It needs to stay updated with changes in your life, the law, and your assets.

There’s currently more than $58 billion in unclaimed property held in departments of unclaimed property across the United States. Yep, that is billion with a B. Assets often land there when someone dies or becomes incapacitated, and their family loses track of it because it wasn’t tracked well during life. And that’s just one way your family loses out if you’ve shopped around for the cheapest estate plan rather than having a plan that works for the people you love.

Is Something Better Than Nothing?

Sometimes, having something in place is better than nothing, but this isn’t one of those cases. In this case, having a “something” plan leaves your family holding the expensive, or even empty bag, when it’s too late for them and you to do anything about it. It’s risky business to leave your loved one’s with a set of documents you aren’t sure are going to work, and our guess is that you love your people too much for that.

Bottom line: don’t waste your time shopping around town for the cheapest plan possible. You don’t want the cheap plan. You want the plan that will work for the people you love when they need it.

If you already have an estate plan in place that you may have bought based on price, and are concerned you may have gotten a set of documents that won’t serve your family when they need it most, call us and ask about our 50-point assessment. We can help you save some money by giving it to do yourself, or you can pay us for a plan review to make sure your loved one’s won’t get stuck with an expensive and painful and unnecessary court process or loss of assets, when it’s too late.

Contact us to get on our calendar. We begin our planning process with a Family Wealth Planning Planning Session, during which you’ll not only become more financially organized than ever before, you’ll finally be able to make informed, educated choices about the right plan for your family based on your unique family dynamics and your assets, instead of just shopping around for an estate plan based on price.

This article is a service of Jeannette Marsala, Personal Family Lawyer. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, during which you’ll get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

February 21, 2023
Why DIY Online Services, Document Preparers and Trust Mills are not the best solution

“My situation is simple. Why should I pay thousands of dollars to an estate planning attorney to prepare a living trust or will?”

We get it. No one wants to pay more for something they can get cheaper. You feel like you have a simple situation and writing a trust or will should be easy to do yourself, with just a little bit of help with the “right language.”

You search “affordable living trust” and found a cheap online website for you to prepare your own estate plan like Legalzoom, or see you see a flyer advertising an “affordable” Living Trust for just $599, or a friend recommends a cheap service like LegalShield. Or your employer has a legal service plan that pays for a basic estate plan.

Why are these not good options?

A non-attorney or paralegal cannot give legal advice

This is the fine print language you will see on the self-help services. It is illegal for a paralegal or notary to give legal advice. Legal advice include answering questions on how to complete the form, such as how title should be held, the consequences of this choice, explanations of what happens with this language or form, etc. Any legal advice must come from an attorney licensed in your state.

Paralegals or notaries or document preparers can’t help you decide if there is a better option or advise you on unexpected tax consequences (and even a simple estate plan can have tax consequences). Just because something is legally allowed doesn’t mean it’s the best option for you. The cheap option may result in higher, unexpected fees in the end because you didn’t receive the proper advice.

A document preparer simply takes the information you give them and enter it into a template. The template often overlooks major areas and likely won’t accomplish the client’s goals. Worse, the client doesn’t understand the documents or use them correctly because they have no guidance. Many of the trusts we’ve seen drafted by paralegals or document preparers have serious deficiencies and drafting errors, costing clients even more money to fix.

If someone cannot give legal advice, they CANNOT create a comprehensive Estate Plan that considers different situations, laws, and client needs.

A trust mill cannot give good legal advice

On the other end, are the trust mills. Trust mills are high volume, low cost firms that often never meet with their clients. Maybe there is an attorney involved, but that attorney is licensed in another state or the client never meets with the attorney. Sometimes these are services that are offered by their financial planner or as part of a legal subscription plan. If you never spend quality time with an attorney discussing your estate plan, that’s a red flag.

Trust mills only do boilerplate work, generally do not spend much time or follow-up on funding the trust, and treat each client’s situation the same without regard to differences in needs and goals. The nature of trust mills is that because they charge so little, they cannot effectively guide their clients, do not customize the plans for their clients (unless the clients have the savvy to know what to ask for), and have to take on a large amount of clients in order to make their practice profitable. High volume, low-cost firms CANNOT focus on each client’s specific needs because their business model does not allow for this level of detail. In fact, many times there is no attorney oversight of the trusts being prepared.

For instance, most married couples don’t need a bypass trust in their living trust. But a trust mill may automatically include the unnecessary bypass trust in their boilerplate template – costly the clients thousands of dollars in trust administration fees and unintended distribution of assets when the first spouse passes away. Or they don’t evaluate the characteristic of the asset in light of California’s laws, potentially losing thousands of dollars in tax savings.

Another sign of poor drafting is automatic inclusion of a disclaimer trust, which is often misunderstood and rarely executed correctly.

With a trust mill, your trust is prepared entirely based on your responses to a questionnaire. But often clients don’t understand the questionnaire (Do I include the house that I only have a 10% interest in but my sister lives there and makes all the payments? What about my timeshare?) and leave out essential information. Because an attorney is not getting to know the clients and asking questions, the clients don’t know to share important information for the trust and the trust doesn’t meet their needs.

Case study

Sara and David lived a modest life. Sara worked as a teacher and David was a truck driver. They bought a house in the 1960s in San Jose for $40,000. They had 3 children. In 1999, they hired a paralegal to draft their living trust, and amended it again in 2010. David passed away in 2012.

In 2020, Sara hired me to amend her trust. Upon review of the old trust, I discovered some major problems:

1. The Trust Amendment wasn’t properly done and therefore, wasn’t valid.

2. The Trust had an unnecessary Bypass Trust which was now irrevocable because David passed away.

3. The Trust didn’t provide for a beneficiary to the Bypass Trust.

4. Their Will was missing some essential provisions, such as waiver of a bond.

5. Sara’s youngest child is on SSI and the Trust didn’t have protective language.

The Problem:

Sara will need to administer the unnecessary Bypass Trust, costing more money and loss in tax savings. Moreover, because there wasn’t a beneficiary named to the Bypass Trust, we need to petition the Probate Court for permission to terminate the trust. In the end, Sara easily spent five times as much than if she hired an estate planning attorney to prepare the trust to begin with. Also, if Sara’s youngest child inherited the assets, her child may lose her SSI benefits.

The Solution:

Sara and David should hire a competent estate planning attorney to prepare their trust, and periodically reviewed their trust with their attorney to ensure it is updated. At Marsala Law Firm, we work with our clients to take a holistic look at our client’s needs. We don’t just prepare a trust; we develop relationships with our clients.

Estate Planning is one area where one size doesn’t fit all.

Estate planning can be a complex area, with potential negative tax consequences even in “simple” cases. In fact, it’s an area of law where other attorneys not practicing estate planning who decide to “dabble” in creating a trust, have messed up.

You don’t know what you don’t know

We have worked with clients who had previous trusts drafted by document preparers and even other attorneys. Most of the time, we find areas where their previous documents had serious negative consequences like an unnecessary bypass trust which cost the client thousands more to correct.

WE GIVE YOU THE POWER OVER YOUR TRUST

“You are so thorough. You’ve explained things more clearly than my previous estate planning attorney.”

We want to ensure YOU understand YOUR plan and how YOUR estate plan works. More importantly, we take the time to give you the power to make choices that other preparers automatically choose for you. We explain the pros and cons of each choice and empower you to control exactly how your estate plan works. We are concerned not just the theoretical risks, but how the trust will work in reality, so you aren’t paying excess fees for little benefit.

We take a holistic approach to estate planning. We don’t just prepare a trust. We take the time to get to know you and your family so we can ensure your goals will be met. You are not a transaction. We genuinely care about you and our community that we all live in.

April 25, 2020