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Deland on Estates and Elder Law

Thursday, March 6, 2008

Living Trusts: More Than Will-Substitutes

Most people think of living trusts in connection with estate planning, as being roughly equivalent to wills. In fact, living trusts were first widely used in California in response to the high statutory fees for probating a will in that state. But a living trust can be more than a will substitute. A living trust can make your life easier, by allowing someone to step in to take care of your financial affairs if you are disabled and unable to fend for yourself. 
 
Most estate plans rely on a power of attorney to do this. A power of attorney can be described as a blank check. You give someone the same ability you have to write checks, buy and sell property, anything you can do, you can empower your “attorney-in-fact,” or “agent” to do for you. Your agent does not sign any agreement, is not bound by any directions you may give him or her, and the power usually provides that the agent is not liable for anything he or she may do under the power. Horror stories abound of people who came home from the hospital and found that their houses had been sold, or of people who have had their bank accounts emptied by someone they had thought they could trust.
 
A properly drawn living trust, on the other hand, can include specific instructions to the trustee. The trustee signs an acceptance of trust, and becomes bound by these instructions, which are legally enforceable.
 
Another problem with the power of attorney is that financial institutions are not bound to accept it.   A power may be too old – “stale.” Some powers called “springing” powers of attorney, become effective only when the principal becomes disabled. A springing power may be too new for a banker’s liking. You mean the person was fine yesterday, and today they’re disabled? There is no way to force a bank or a broker to accept a power. In contrast, if an account is properly titled to the trust, the bank or broker has to follow the instructions of the trustee.
 
By making it possible for someone to care for you when you are not able to manage your own affairs, a living trust can go beyond being a will substitute, to make your life and your family’s life easier.



Jennifer A. Deland, Counselor-at-Law advises clients throughout the Metrowest area, including Holliston, Hopkinton, Milford, Medway, Medfield, Ashland, Framingham, Natick, Sherborn, Dover, Southborough, Sudbury and Westborough.

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