“We often see trusts that don’t reflect the person’s current wishes because they just haven’t gotten around to updating it.”

 

By James Ward

James Ward

Covid has been bad news with illness and death for millions, the loss of loved ones and caregivers for millions, and economic turmoil for millions more.

When the pandemic first took off, the hospitals needed thousands of respirators. The good news was that the government had thousands in storage. The bad news was that the vast majority of those didn’t work. Good news and bad news.

Despite the losses from the outbreak, the good news has been the success of the vaccines we have available in the U.S. In other countries, the success has varied.

The good news in the Seychelles, Bahrain, Chile, and Mongolia was they got out of the gate very fast with high vaccination rates in their populations. The bad news was that all four of those countries used Chinese vaccines which apparently weren’t very effective, and soon all four of those countries ranked in the top 10 of the worst outbreaks worldwide. Yes, good news and bad news.

What about your estate plan? If you have one, that’s good news. If it won’t work when you need it, that’s bad news. Will it work? People counted on those Chinese vaccines to work, but it appears that they weren’t effective.

Does your estate plan reflect your current wishes? Are the right people in charge to look after your interests? Will the results be good news or bad news?

We often see trusts that don’t reflect the person’s current wishes because they just haven’t gotten around to updating it. But in some cases, the trust was wrong from the beginning. It simply wasn’t a good trust.

In a recent case with a husband and wife, the trust says that if either is incapacitated, they agree to resign from being Trustee. The next paragraph gives a committee of people who will decide whether the person is incapacitated, and if two of the three say the person is incapacitated, then the person agrees to resign. (A committee of three is a pastor and two medical doctors.) The problem with the trust is that there is no third step for removal of the Trustee if he or she refuses to resign, and now the couple has waited too long and the husband’s dementia has progressed to the point where he no longer has the mental capacity to resign. I cannot allow him to sign any documents at all. He can say his name, but he doesn’t know that he’s married to his wife, and when asked for his town, city, street, or number of children, he can only repeat his name.

The wife has exhausted their liquid assets in paying for their stay at an assisted living facility, and now she’s facing the prospect of selling their residence and paying a huge amount of capital gains tax. Due to many different circumstances, and waiting too long to act, she’s now facing a dilemma and has a poorly written trust.

Where do you stand on this issue for yourself? Do you have a good trust? Does it reflect your current wishes of who you want in charge and how you want any remaining assets distributed after your death? If you don’t have a trust, go see a qualified attorney who practices elder law and estate planning. If you have a trust, make sure it reflects your current wishes and will work when you need it to work.

Protect yourselves. Protect your families.