Planning for Singles and Couples Without Children
For singles and couples without children, the lawyer as co-trustee fulfills an entirely different function. In the couples setting, we are referring to the issues that arise after the first spouse dies. From an estate planning point of view, couples without children ultimately have the same issues as singles.
So whether you are single now or become one after your partner dies, your key issue is not planning for death, not who you are leaving it to and certainly not having a will. Your key issue is planning for disability. Should you be unable, at some point, to handle your financial and legal affairs due to accident or illness, who will take over? If you don't have a strong plan for disability, which eventually happens to about half of all people, you are at considerable risk of having the wrong person or a stranger take over your affairs. In the event of disability, virtually any interested party (hospital, doctor, lawyer, social worker, relative, etc.) may commence a proceeding to have a legal guardian appointed for you. Once you enter into this bureaucratic process, usually involuntarily, it is exceedingly difficult to extricate yourself and you lose precious control over your affairs. We often say you are only as strong as your back-up plan. If you have set up a living trust, you are in charge now, but the trust says who takes over in the event of disability. You get the person or persons you have chosen, not a court appointed legal guardian, along with the thousands of dollars in costs that such proceedings entail.
So, who should you choose? We recommend that you choose two people. One a friend or relative who is willing to undertake the responsibility and then the lawyer as co-trustee. The lawyer will see to it that the trust is run properly and that all of your affairs are handled according to law. It takes a considerable amount of the anxiety, pressure and responsibility off of your friend or relative who has so kindly agreed to undertake this task. Further, you have two people signing off on all decisions, and everyone knows what two heads are better than. Not only is the possibility of a mistake being made greatly reduced, but it also eliminates the risk of misappropriation of assets. In some cases, where clients do not have a friend or relative available for this purpose or where they do not want to burden anyone with the responsibility, the lawyer may act as sole trustee.
In our view, planning for disability is more important than planning for death. In the case of disability, the lawyer as co-trustee may be an invaluable asset to the childless person.
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Mr Ettinger has worked with my family for over a decade and has provided excellent advice on numerous issues relating to trust and elder law.