Marco and Lisa Smith are consulting with their attorney to draft their Last Will and Testament and discuss the possibility of establishing a trust. They have two adult children, both in their late thirties. Their son is married with two children, and their daughter lives at home and works at a childcare center. She was born with a medical condition and is unlikely to live on her own.
Marco and Lisa had no idea estate planning was so complicated. They met with their attorney to discuss their estate planning needs and desires, and they returned for a follow-up appointment to go over their legal documents. Their attorney has prepared a large binder of documents for them and intends to go through each of them to ensure Marco and Lisa fully understand the implications of each one.
When asked about the procedure, the Smith’s attorney used the analogy of a plumber to fix a complicated water leak. The plumber will need to bring a variety of tools because they do not want to be caught off-guard once they have identified the problem. Likewise, their attorney is preparing several documents that must accomplish the following goals:
- Accurately reflect the goals and intentions of the signers
- Be legally enforceable in court
- Address unanticipated and unforeseeable needs and circumstances
- Cohesively communicate meaning to the readers
Living Trust Documents Must Accurately Reflect the Goals and Intentions of the Signers
Some of Marco and Lisa’s needs may be anticipated, while others may be unexpected, but they must be accounted for in precise language within their trust document. They need to consider how they will provide for their daughter, protect her financial assets, and provide for their son and his future needs. The Smiths must also have plans in place if they become incapacitated and unable to make financial, property management, and healthcare decisions. Without fully knowing or anticipating their needs, the trust will allow them to prioritize how they want to distribute their money and property. It takes time and careful wording to express their wishes in a document that will speak for them in the future.
Trust Documents Must Be Legally Enforceable in Court
The Smiths want their estate plan to be comprehensive enough to avoid probate court and withstand challenges from any outside parties. Therefore, their trust document must clearly communicate their legal rights, obligations, and responsibilities.
They also want their trust document to help them avoid the probate process. The trust documents must be able to communicate to representatives in banks and other financial institutions, medical providers, title companies, the Internal Revenue Service, and other government agencies.
Trust Documents Must Address Unanticipated and Unforeseeable Needs and Circumstances
Marco and Lisa and their children may have a variety of future needs, some of which they can anticipate and others which they cannot. Therefore, their attorney has guided them through various scenarios to consider what they want their trust documents to say in each situation.
The Smith’s attorney walked them through potential life situations such as losing the ability to make decisions for themselves, finding a place for their daughter if she can no longer live in the family home, or caring for a family member with an unexpected serious illness. The Smiths also needed to appoint a trustee to manage their trust and consider a backup or successor trustee. The Smith’s attorney has the experience necessary to create a comprehensive document that will serve as a guide in these diverse situations.
The Trust Must Cohesively Communicate Meaning to the Readers
The language in the trust and other documents must convey a consistent message to everyone who reads or reviews the documents. Everyone reading the document brings their experience to bear, as well as their conscious or subconscious beliefs about what the document says. Therefore, the language must be clear so as to minimize misinterpretations and misunderstandings.
We can help you create your trust plan or review your documents to ensure they are comprehensive and fully express your wishes. Our knowledgeable attorneys will help you develop a well-rounded estate plan that will protect you and your loved ones.