Category Archives: Trusts

Second marriages: providing for a surviving spouse in a trust

By Sally Wagley, Maine elder law and estate attorney

We have had a number of clients who fit the following profile: They are married for a second time, each with children from a previous marriage. One of them has substantially more than the other. Let’s assume for discussion purposes that the husband is the one with more than the wife. The husband wants to ensure that, should he die first, the wife has enough income to live comfortably for the rest of her life. However, he does not want to leave assets to her outright, as he wants to make sure that his children will ultimately inherit.

One option is for the husband to leave some or all of his estate to a trust for his wife’s benefit. Such a trust typically provides that she gets all the income generated by the assets placed in trust, to give her a stream of income which is adequate to maintain her standard of living. The trust may provide, in addition, that should the trust income and her own income be inadequate, the wife can receive amounts of principal which are needed for this purpose.

Who should be the trustee of this trust? One option is for the husband to name one or more of his children as trustees. If his estate is substantial, it is possible to have a bank serve as trustee. Or, if the husband trusts the wife to be a responsible trustee and to abide by the rules of the trust, he can name her to be the trustee, with one or more of his children to become the successor trustee if she becomes incapacitated.

This arrangement may be coupled with giving the wife a life estate in any real estate which he owns separately, such as a primary home or a cottage.

Simple Wills that Make a Difference

By Patrice A. Putman, Maine estate and elder law attorney

Most people have some sense of what they want to happen with their “estates” (real estate, savings, cars and the “stuff” in their homes) if they die any time soon. If they have minor children, they know who they want (and, just as importantly, don’t want) to raise their kids. But then they are hesitant to call a lawyer and put their wishes in writing. Why?

Lawyers can be intimidating. When we see commercials about lawyers on TV they invariably use deep, intimidating voices and sometimes even flash fists and baseball bats. In fact, most lawyers are nice people who work hard to meet your needs. Many donate a great deal of their time to charities that they care about and volunteer in their communities.

You are concerned about cost. Having a Will written well and executed properly costs money – but probably not as much as you fear. At our office, a simple Will with a testamentary trust for the kids (a trust that is created only upon one’s death) is usually done for a flat fee, which we quote you at the end of a first meeting. This fee includes the initial meeting to gather all the necessary information and to understand your wishes. This is also when we will tell you about any unintended consequences associated with your wishes so that you can be fully informed about your choices. We then draft the Will, send you the draft, go over any questions or concerns with you, make any changes needed, and prepare a final document. The basic fee also includes a final meeting where any last questions are answered and any final changes are made. The Will is then signed, witnessed, and notarized. Copies are made and instructions (on what to do with the Will and the copies) are given.

You haven’t decided what to do. Decisions about what to do with your stuff or who to name to take care of your kids or to serve as Personal Representative (executor) are really hard decisions. We can help you think these things through. Sometimes you need more information and sometimes you need more options. Lawyers are trained to provide you with both.

If you don’t have a Will, state law determines what happens to your real estate, savings and other assets, a probate judge will decide who the best person is to raise your children. A simple will ensures that these things are handled they way you want.

The information provided in this post is for educational purposes only.   It describes the law in effect at the time the materials were written.  This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Using a trust or LLC to keep your vacation home in the family

Here in Maine (“Vacationland”), one of our favorite activities is going “up to camp.”  People treasure their waterfront property and hope that it will remain in the family for generations.   While it is impossible to control the future from your grave, you can increase the chances of the property staying in the family by placing the property in a trust or a limited liability company (LLC). Such an arrangement typically provides:


  • Who will make decisions about the property. If you use a trust, the decision maker(s) will be called “trustees” if you use a trust.  You might appoint one of your children as trustees, or perhaps all of them, to act as a group.
  • The arrangement will state how decisions are to be made about the property: Will one person make decisions unilaterally?  Or will decisions be made by a group, by majority vote?
  • Who will pay property taxes, insurance, utilities and maintenance?  Will it be shared by all members of the family who get to use it?  What if one person can’t afford these expenses?
  • How will a schedule be arrived at, enabling different family members to use the property?
  • What if one of the beneficiaries isn’t using the property much and wants out of the arrangement?  Will other beneficiaries be required to buy him or her out? If so, how will they decide on a price?
  • What happens if a beneficiary dies?  Does that beneficiary’s share go to the other beneficiaries?  Or does it go to the deceased beneficiary’s children?

Families are often tempted to develop such an arrangement informally.  However, this type of arrangement is complex, requiring the consideration of many possible scenarios as well as tax considerations.  Therefore, it is essential to consult an attorney before deciding to go in this direction.  

 

Sally M. Wagley assists older and disabled people and their families in the areas of elder law,  estate planning and estate administration with the firm of Levey and Wagley, P.A. in Winthrop, Maine. Go to www.leveyandwagley.com.   

Using a Revocable Living Trust to Avoid Probate

“Probate” – a word that creates fear and dread in the hearts of many. (For more information on what “probate” is, see my previous blog, “What is Probate?”)  But the truth is:  While the probate process in some other states is complex, time consuming and expensive, Maine has a streamlined probate process which for most people is relatively fast and is no more expensive than alternatives to probate.

 Reasons to avoid probate.  Nevertheless, in some instances, it can make sense to make arrangements to avoid probate.  This is true if: 

  • You have real estate outside of Maine; or
  • You have concerns about privacy and want to keep the details of your estate plan private.

 Ways to avoid probate. A number of simple ways can be used to avoid probate, such as: 

  • Putting real estate, bank accounts and investment accounts in joint names;
  • Designating beneficiaries on investment accounts, retirement plans, annuities and life insurance; 
  • Using “transfer on death” designations (“TOD” or “POD”) on accounts.

 Using a Revocable Living Trust to avoid probate. A “revocable living trust” may also be part of a plan to avoid probate.   This is done as follows:   A lawyer writes up a trust document.   Under this document, you name yourself as trustee. This means that during your life, and for as long as you are mentally competent, you remain in control of your assets.  You are able to add assets to or remove assets from the trust, spend money from it, change the terms of the trust, or revoke the trust altogether. You also name a “successor trustee”:  a trusted person (such as a family member or bank) to take charge of the assets when you die, or possibly sooner, if you become mentally incompetent.  When you die, the successor trustee pays bills and then distributes money and property according to the directions in the trust document, to the people you name in the document and in the amounts directed by you.  This can all be done without anyone having to file papers in the probate court. This preserves your privacy.  And if you have real estate outside of Maine, it avoids the necessity of filing for probate in another state, which can indeed be expensive.

 When considering whether to have a trust of this type prepared, be aware that the fees will be higher than if you go with a simple will.  This is because, in addition to the drafting of the trust document, deeds must be prepared, transferring your home and other real estate to the trust. Your bank and investment accounts will also need to be transferred to the trust, and beneficiaries will need to be changed on your retirement plans and life insurance.    This will all require more time on the part of your attorney, for which you should expect to be billed. 

(This blog is by attorney Sally M. Wagley, a Maine elder law attorney with the firm of Levey & Wagley, P.A., in Winthrop, Maine.  The information provided on this website is for informational and educational purposes only.   This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.)

A Trust for a Minor or Young Adult Child

If you have a minor child or a child in the late teens or early twenties, you should consider leaving your child’s inheritance to a trust, rather than to your child outright. Why? 

  • The establishment of a trust will avoid the necessity of having a court appoint a conservator for a child under age 18.  (Even the child’s surviving parent or guardian will be required to have to seek appointment as conservator before funds can be distributed from your estate and used for your child’s benefit.  This is required by law, and will take time and money)
  • A trust will prevent your child’s receiving his or her inheritance at age 18.  Even responsible children in this age group can make impulsive financial decisions.  The placement of the funds under the control of a trustee will ensure that your child’s inheritance is responsibly managed until your child is ready to do this on his or her own.
  • A trust will enable you to choose a reliable person to act as trustee for your child.  It is not necessary that it be a bank or trust company:  you can choose a family member or friend.
  • A trust can direct what types of things your child’s inheritance can spent on, such as college or vocational training. 

A trust of this type need not be expensive or complicated.   The trust can be relatively simple and made part of your will.  It is not necessary to place funds in the trust now.  Rather, funds (or other assets) will go into the trust upon your death.  

I have prepared many hundreds of these trusts for clients with children who are minors or young adults.   Typically the trust directs the trustee to use funds for the child’s health, education and support until the child reaches age 19 or graduates from high school.  Thereafter, the trustee is directed to use the funds for college of other post-secondary education, as well as living expenses if the child is enrolled full time.    Most clients choose to have the trust end, and the child’s inheritance released to the child, at age 25.  (I had one very protective mother insist that her son should not get his full inheritance from the trustee until age 50, which I thought was a bit much.)  Other clients direct the trustee to distribute income from the trust investments automatically over a period of years, as well as installments of principal from time to time. 

However, the terms of the trust are entirely up to you, and can be tailored to fit your situation and your goals for your child.

Trusts 101

Clients frequently come into my law office asking “Should I (or we) have a trust?”  My answer is always “It depends on your situation and what your goals are.” 

Then I ask clients, “What are your goals?   What are the concerns you have that make you think about having a trust?”   These concerns may include:

  • Providing for a minor or young adult child
  • Providing for a disabled person
  • Providing for a pet
  • Avoiding probate
  • Minimizing estate tax
  • Preserving your assets against the high cost of nursing home care
  • Keeping your vacation home in the family.

There are many different types of trusts, for many different purposes:

  • A trust for a minor or young adult child;
  • A “special needs trust” for a disabled person;
  • A trust for the care of an animal;
  • A revocable living trust, to avoid probate;
  • A tax-oriented trust, to reduce estate taxes;
  • A trust to preserving your assets against the high cost of nursing home care;
  • A trust to hold your vacation home for the benefit of your family.

In the coming weeks, I will write about different types of trusts which can be useful depending on the client’s situation. Later this week:  Trusts for minor or young adult children.

Estate Planning for Parents of Disabled Children

by Sally M. Wagley, attorney

Parents of disabled children tend to worry a lot. I am frequently asked the following questions:
• Will my child be able to live independently, without my support?
• Does my child need a guardian?
• Where will my child live?
• Does my child qualify for public assistance programs such as SSI and MaineCare (Medicaid)?
• If I leave money or property to my child, will my child lose public assistance?

Will my child need a guardian?
Some children, in spite of their disabilities, are able to live independently. Many people with physical disabilities lead active lives, helped by adaptive equipment, in-home services, and legal protection under the Americans for Disabilities Act. For this group, the appointment of a guardian is not a concern.

Even a child with mental or emotional disabilities may be able to live on their own or in supportive settings such as supervised apartments and group homes.

A parent of a disabled child should ask him or herself, “Is my child able to make decisions about medical care? Is my child able to manage money?” If the parent has any doubt, he or she should first consider whether the child has the mental capacity to sign a durable power of attorney, in which the child chooses another person (such as a parent, other family member or family friend) who can to access medical and financial information and make the decisions for the child, to the extent the child is unable. In this situation, the child continues to have a degree of independence.

However, the child’s mental disability may be so severe that he or she does not have sufficient understanding of the power of attorney. In this case, I advise parents, upon the child’s turning 18, to petition the probate court for appointment as the child’s guardian. Otherwise, the parent will no longer be able to make decisions for the now adult child. Where the child has money or property in excess of $5000, the parent must also be appointed as the child’s conservator.

A parent will also worry who will watch over the child after the parent is gone. I advise parents, in their wills, to designate a responsible adult to act as the child’s guardian in this circumstance.

Where the child receives some kind of Social Security benefit, the parent should also apply to become the child’s representative payee, to handle that child’s benefit check.

Will my child qualify for public assistance?
A child who has a physical, mental or emotional impairment may be unable to support him or herself financially. The child is also unlikely to have medical coverage.

In order to be eligible for cash benefits from the Social Security Administration, the child must undergo a disability determination. This can be started by visiting the local Social Security office.
If the child is determined to be disabled, he or she may qualify for Social Security Disability Income (SSDI) or Supplemental Security Income (SSI). A child with a deceased or disabled parent may qualify for SSDI, based on his parent’s work record. The amount of the cash benefit will vary, based on the parent’s work history. After two years of being on SSDI, the child will also qualify for Medicare, which will cover much, but not all of, the child’s medical expenses. Depending on the amount of the SSDI benefit, the child may also qualify for MaineCare. (discussed below), which would cover the child’s other medical expenses not covered by Medicare.
Children who do not qualify for SSDI may qualify for SSI. The child must be low income and have limited assets. The maximum SSI benefit in 2010 is $674. If the client qualifies for SSI, he or she will also qualify for MaineCare.

MaineCare (Medicaid) is a comprehensive public insurance program. MaineCare is available to a number of different populations, with different income and asset thresholds for each group. You should call the local Department of Health and Human Services office to find out whether your child might be eligible.
In my will, should I leave my child money or property? Will this cause my child to be ineligible for public assistance?

The parent may be want to leave money or property to the child, but may worry that the child will lose benefits, particularly medical coverage.

Special Needs Trusts for Disabled Children
There is an answer to this problem. The parent’s will should leave the child’s inheritance to a special needs trust. This arrangement will enable the child to maintain benefits while having funds available to provide for the child’s “special” or “supplemental” needs. A person, known as a “trustee”, oversees the funds. You can choose a family member, friend, professional or financial institution to be the trustee. The trustee will have discretion as to what kinds of things to spend the money on. The trustee will not give money directly to the child (this would cause the child to lose benefits) but instead will make payments directly to providers of goods and services to the child. The primary purpose of the trust is to meet those of the child’s needs which may not be met by benefit programs. These needs may include: dental care, eyeglasses, holistic health care, special therapies, in-home services in excess of what public programs provide, companion services, adaptive equipment, telephone, tuition, transportation, exercise programs, and the like.

The trustee may also, in the trustee’s discretion, expend funds for the child’s housing. For instance, the trustee might purchase a modest home for the child or might pay for an oil delivery. If the child is on SSI, such an expenditure will cause the child to lose a little more than one-third of his or her monthly benefit, but this may not be a bad trade-off.

The trust can provide that, upon the child’s death, the balance of the trust will go to other family members or to charity.

Getting help
When it comes to a will, a special needs trust or a power of attorney, consult a lawyer who is knowledgeable in this area. Beware of forms on the internet or in books, which may not be appropriate for Maine residents, and which may not address your particular situation. Also, there are tax considerations, which can only be addressed with the help of a competent professional.

The information provided here is for educational purposes only, and should not be construed as legal advice or an answer to a specific legal problem.

Sally M. Wagley assists older and disabled people and their families in the areas of public benefits, estate planning and estate administration, with the firm of Levey and Wagley, P.A. in Winthrop, Maine, www.leveyandwagley.com.