❖ I had a trust and then my spouse and I divorced. I am about to re‑marry, do I need to do any estate planning?
You should contact an attorney immediately because many of your previous estate planning documents and beneficiary statements are no longer effective. You should consider a premarital agreement and receive advice as to the best estate plan for your new marriage.
If you are considering a premarital agreement, please leave enough time to receive legal counsel, to draft the premarital agreement, and to consider it before signing. There are strict time limits that apply to premarital agreements, and you should begin planning more than 30 days before your wedding day.
❖ I want to make changes to my trust, can I just write them on the trust?
No! Indeed, writing changes on a will or trust may invalidate the document in its entirety!
Instead of writing on a will or trust, please make notes on a separate piece of paper. Then, call Acuña ❖ Regli to assist you with making changes to the will or trust.
❖ My spouse and I already have a trust. Do we need to do any further estate planning?
A trust is the first building block of a complete estate plan. You also need pour over wills, durable powers of attorney for financial decisions, and advanced health care directives to complete a basic estate plan.
Your trust should be reviewed periodically to ensure that it accurately reflects your wishes. Often, as people age and their estates grow, they may need advanced estate planning to minimize or to eliminate estate taxes. And, of course, if there are changes in your family or personal situation, your estate plan should be reviewed by Acuña ❖ Regli.
❖ Our mom died with a trust. We talked to an attorney who said the trust was “unfunded” and that we would have to file a probate. Is that right?
No. Unfunded trusts are a real problem. Many trust mills and some attorneys create trusts but do not transfer real estate or provide instruction letters to financial institutions directing asset transfers into the trust. But there is a solution that avoids probate.
Acuña ❖ Regli can prepare a “Heggstad Petition.” This is a Probate Petition that takes much less time and is much less expensive than a full blown probate. The basis of the petition is that your mom created a trust and wanted the trust to control her estate. However, she made a mistake in “funding” the trust.
If the court approves the petition, the property will be transferred to the trust and the trustee can complete an ordinary trust administration.
❖ Should I change my 401K and IRA’s to the name of the trust?
Transferring retirement accounts such as 401k’s and IRA’s to the name of the trust is not advisable because it may trigger unwanted tax consequences. Instead, death beneficiaries should be reviewed carefully to ensure that the correct beneficiary is stated.
In some cases, the trust may be drafted as a beneficiary of the retirement account. This may be advisable to control a spouse or child’s access to the retirement account. Instead of unlimited access as a direct beneficiary, the trust can be drafted to place controls on how much is withdrawn from the retirement account and what can be done with the proceeds.
In all cases, the worst thing is to fail to make any beneficiary designation at all, or to leave an out‑of‑date designation in place (such as naming an ex‑spouse as the beneficiary of your 401k!). Please consult with your attorney or tax advisor before making changes to beneficiary statements.
❖ Should I give a copy of my living trust to a financial institution that demands it?
A living trust is a private document. However, many financial institutions require proof that a trust has been created. California law provides that a Trust Certification may be given and that the financial institution is required to accept it. Acuña ❖ Regli prepares a Trust Certification for you whenever we create a trust.
❖ We have a trust, but recently refinanced our home. How can I tell if the house was returned to the trust?
Acuña ❖ Regli can check online title records for you, at no charge. If necessary, we will create and record a deed for you to return your property to the trust for a reasonable fee, saving your estate the potentially high cost of a probate if the real estate is not in your trust at time of death.