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Important Living Trust Considerations: Successor Trustees, Co-Trustees, Alternate Beneficiaries

By Mitchell Miller

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Published: 26Sep2008
Word count: 511
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A living trust is an essential part of a person's estate plan because it protects your estate from going through probate. With only a will your estate must go through probate in the state in which you die. And if you own property in other states and in other countries, your estate must go through probate in those states and countries also.

The legal requirements of probate can be very costly and extremely aggravating for your heirs. All of this unpleasantness can be avoided by having a living trust.

A good estate planning attorney will make the process of preparing your documents go as smoothly as possible. In order to help him/her, there are a few questions you should decide in advance:

When you set up a living trust - you (or you and your spouse if married) are the Trustee(s) while you are alive and in good mental health. In the trust you name Successor Trustees to take over when you are incapacitated or deceased.

Who do you want to make the decision that you are no longer capable of handling your own affairs (and thus the Successor Trustees will take over)?

Do you want one person such as your spouse to make that decision? More than one person? Your spouse and children? Your spouse and doctor? Two doctors? The choice is up to you, but think it through carefully.)

Your trust will always name a Successor Trustee, but have you considered whether you want to name Successor Trustees to serve as Co-Trustees?

For example, if you and your spouse have children from different marriages, you may want to ensure that neither set of children has power over the other set of children. One way to try to prevent this is to make sure there is always a separate Successor Trustee (serving as Co-Trustees) for each set of children so that neither set of children can be cut out of an inheritance.

Have you decided to whom to leave family heirlooms?

This situation can cause real friction in the family. If you've promised your mother's wedding ring to a daughter or a family portrait to a son, you need to specify these distributions in your trust.

If something should, heaven forbid, happen to your whole family, have you named alternate beneficiaries?

If you do NOT name alternate beneficiaries to those stated in your living trust - your estate planning attorney may use the legal designation that your "heirs at law" would be your alternate beneficiaries. This means that inheritance law decides who is next in line to inherit, which could result in a cousin you never heard of, or even hate, being named your heir.

Instead, you should ensure that your estate planning lawyer puts in your living trust specific family members, friends, and/or charities as alternate beneficiaries to cover this unlikely, but possible, situation.

The above information is NOT legal advice, only considerations for you to discuss with your own estate planning attorney. The providing of this material does not establish an attorney-client relationship.

For more estate planning information watch the short free video on the home page of Mitchell R. Miller's http://www.estateplanningforyou.com . You'll learn more about why you need a living trust in addition to a will in order to avoid probate. And a second short free video explains why your estate planning needs to be reviewed every 4-5 years. Mitchell R. Miller has been a tax, trust and estate attorney for over 30 years.

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