A common question for many people is, what happens to your Living Trust (and your assets) if something were to happen to you and you become too disabled or ill to manage your own affairs? Who takes over then?
Answer: Your Successor Trustee
When you set up your Living Trust, you will be asked to name a Successor Trustee. This is a person (or persons) that you will appoint to step in when the time comes to help you manage your assets if and when something may happen to you. This may be your spouse, a child, some other person or a trust company. During your lifetime, you are the Trustee of your Living Trust. As the initial Trustee while you are living and able to act, you will have the rights and powers to control your assets, buy and sell real estate, and make decisions as you normally would if you owned your assets outright without a trust. It is essentially “business as usual”. When you become ill or disabled and unable to manage your own affairs, then your Successor Trustee will be called upon to step in and act on your behalf.
When Does the Successor Trustee Step In?
When your family, or third party Successor Trustee, notices a decline in your mental and/or physical health and becomes concerned about your ability to handle your own affairs, it may be time for your Successor Trustee to step in. In order to protect you from being inappropriately replaced as Trustee, our Living Trust requires two doctor letters stating that the licensed professional has examined you and has determined that you are no longer able to manage your own affairs.
Once declared incapacitated, the Successor Trustee can assume the role of trustee. This process does not require the involvement of a court, avoiding what is known as a Conservatorship.
What Does the Successor Trustee Do?
Then the Successor Trustee will effectively do exactly what you would do if you were still acting. They would be sure to arrange for your proper care, make sure that your bills are being paid on time, and manage your assets as you would. When you later pass away, the Successor Trustee is responsible for proper distribution of your estate to your beneficiaries as you have instructed in your Living Trust. They will communicate with your beneficiaries, as well as your estate planning attorney, to help ensure that your wishes are properly carried out.
What If You're Able to Manage Your Own Affairs Again?
Thanks to modern medicine and depending upon the circumstances of your disability, you may be able to regain capacity and manage your own affairs again. In our Living Trust, we have what is known as a “come back in” provision. This will allow you to reassume the role as Trustee of your Living Trust again and the Successor Trustee would step aside until needed again. Again, you may come back in without first going to court.
Have Some More Questions?
If you are located in the Antelope and Santa Clarita Valleys and have you have not had a Living Trust prepared, we encourage you to attend one of our FREE Living Trust seminars to learn more about how our law firm may help you, as we have done with thousands of clients and their loved ones over the past 40 years. If you do have a Living Trust already (whether prepared by our firm or not), we also recommend that you attend the seminar and make an appointment to have your trust reviewed so it is up-to-date with both your wishes, as well as the newest planning strategies. At the very least, you may wish to review who you've named as Successor Trustee and ensure that you still have the proper person (or persons) to step in when the time comes in.
To view our seminar schedule, click here.