Trust and Estate Planning Myths

James Zakasky
An estate attorney who goes beyond drafting wills and creating trusts

Santa Rosa Estate myths image

Estate Planning Myths

#1 Once I put my property into a Trust, it is no longer mine and I have no control of my Home, Bank Accounts or Retirement Accounts.

Absolutely False. While you have put your property into Trust and taken the property out of your name, your Estate Planning Attorney has named you as the Trustee of your own trust giving you a 100 percent control of your Trust. A Good Estate Planning Attorney will make sure that your Trust is properly funded as well by drafting a Deed that puts Title from you personally to your Trust and have the deed recorded with a copy sent to you. A Good Estate Planning Attorney will have a Certificate of Trust drafted as well, so that you can easily change your financial accounts into the Trust’s name.

#2 If I receive property over One Hundred Thousand, I will lose all of my government benefits, my Ex-husband will get it and or my creditors will take it.

Possibly True if you do not have a complete Estate Plan with Contingency Provisions. A Good Estate Planning Attorney will draft for the possibility of a beneficiary having a disability and include Special Needs Trust Provisions. Special Needs Trust Provisions allow someone else to be the Trustee and to only make distributions for special reasons. Thus, the beneficiary does not control the money, therefore Government Benefits continue as if the Gift had never been made. A Good Estate Planning Attorney will also suggest that a General Needs Trust be set up for the beneficiary. The General Needs Trust separates the disbursement for the benefit of just the Beneficiary not THEIR SPOUSE. Since the property is separate, a spouse or ex-spouse has no claim on the disbursement. Lastly, A Good Estate Planning Attorney will put spendthrift clauses and disclaimers in the Trust. A spendthrift Clause will stop the beneficiaries’ creditors from trying to get to the Trust proceeds. In addition, a beneficiary can disclaim the gift if they know that property will go to a creditor.

#3 A Trust will not help if I become incapacitated or assist with my minor children.

Absolutely False. A Good Estate Planning Attorney will make sure that you sign a Durable Power of Attorney. A Durable Power of Attorney designates a person to take control of your assets so that they can act on your behalf. If money is needed to treat your health your agent can authorize payments from your accounts to help you.  They can also pay your Mortgage or make sure that you get care at your home instead of an Assisted Living Center. As for your Minor Children, the Durable Power of Attorney can be used to appoint someone Guardian of your children and use your money so you know they will be taken care of.

#4 A Trust can’t help if I have fallen and I can’t get up.

Not True. A Good Estate Planning Attorney will draft Emergency Cards that are tied to your Health Directives. Docubank systems work with your Attorney to make sure that all first responders know your allergies, medications, diagnosis even if you live alone with a pet. They will also direct your instructions for do not resuscitate orders and Emergency care. Docubank works with HIPAA and allows medical information sharing so you get the best informed medical care. 

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