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Living trust myth
Friday, August 21, 2009
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Dear Len & Rosie, In 1993 my late husband and I went to an attorney and requested a family trust be drawn up for our family. My husband and I owned stock in a large corporation, and in 1993 the stock was retitled in the name of my husband and I as trustees of our family trust.

A few weeks ago I called the corporation to change my address and notified them that my husband is deceased. I asked them to remove his name from the stock certificate. They said they would send me a form to fill out and have my signature “medallion guaranteed,” and that I had to send the form, along with a certified copy of my husband’s death certificate, back to them. They also said I had to send the stock registered mail, insured at 2 percent of the stock’s value. Why? We had the trust drawn up to cover all of this. - Mary
Dear Mary, You have fallen victim to “the living trust myth.” You would be surprised how many others find themselves in the same situation. Many people believe that if they have a trust drawn up, there will be no work to do when they die. This is simply not true.

After the death of one or both of the trustees, there is much to do. At the very least, title to all trust assets must be changed to remove the dead spouse’s name as trustee. The corporation wants you to fill out their paperwork and get a medallion signature guarantee (available at most banks) because that’s what they always require to transfer stock certificates. You and your husband had to do the same thing when you put the stock into the trust. You would also have to fill out the same paperwork if your husband had a will. A broker can do this for you if you need help.
Also, your trust may be an A/B trust that requires a split between a survivor’s trust and a decedent’s trust on the death of the first spouse. If so, it is essential that you get everything appraised, prepare an accounting, and fund the various subtrusts to help shelter your assets from federal estate tax. You may also have to file a federal estate tax return for your husband, if his property was worth more than $3.5 million assuming he passed away in 2009.

The bottom line here is that a living trust cannot relieve you of all of the administrative duties associated with the death of your spouse. The necessary work can be complicated. This is why most people retain an attorney to help them with trust administration.
This should not turn you off on the idea of having a trust. The real advantages of a living trust is that it saves time and money. Assets held in a trust do not have to go through probate, which can take as long a nine to 15 months to complete. Attorney fees in probate are set by statute as a percentage of the value of the estate. While the percentage probate fee varies depending on the size of the estate, you can count on paying an attorney between 2 to 3 percent of a probate estate’s total value. On the other hand, fees for trust administration are negotiable between the attorney and client, and are almost always cheaper than probate, depending on the complexity of the trust and its assets.

What you should do is to consult with a trusts and estates attorney to review your estate plan and how all of your assets are titled, so that he or she may assist you in straightening out everything now so that it will be easier for your loved ones after you pass away.

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or at www.lentillem.com. Len also answers legal questions each weekday, noon to 1 p.m., and Sundays, 4-7 p.m., on KGO Radio 810 AM.
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