Look Over Your Lawyer’s Shoulder

Even if your estate planning attorney is highly qualified, it is prudent to ask plenty of questions and check his or her work.  The following is a list of basic points to keep in mind as you work with your estate planning attorney.

Revocable Trusts.  Your attorney will probably recommend that you have a revocable trust as the core document in your estate plan.  Be sure that you understand the purposes of a revocable trust – what a revocable trust does do and does not do.  (To learn more about revocable trusts in Utah, see “Basic Utah Estate Planning Information” on this website.)  What follows in this blog post assumes that you will have a revocable trust.

Check the Gifts.  If you want your diamond ring to go to your sister, Mary Jones; $100,000 to go to your friend, Susan Thomas; and everything else to go to your children in equal shares, make sure the estate plan your attorney has drafted says so.

What if a Beneficiary Predeceases You?  Your estate plan should explain what you want to happen if one of your beneficiaries dies before you do.  Using the examples from above, who do you want to receive your diamond ring if Mary Jones predeceases you?  Your revocable trust should be specific.  Or if Susan Thomas dies before you do, what do you want to have happen to that $100,000 gift?  Do you want someone else in particular to receive the $100,000?  Or not?  Your revocable trust should state your preference.

Residuary Clause.  Check to make sure your revocable trust contains a residuary clause, i.e. a provision that disposes of “all the rest” of your property (the “residue”).  You don’t want an estate plan that just gives your diamond ring to Mary Jones and $100,000 to Susan Thomas.  You also need a provision in your estate plan that says where everything else goes.

Guardians.  If you have minor children, your will should nominate guardians who will be responsible for raising your children.

Funds for Minor Children.  How will your property be held and managed for your minor children if both you and your spouse die?  Presumably your assets will be held in trust until your youngest child reaches adulthood.  Make sure your revocable trust clearly expresses your desires.

Fiduciaries.  Make sure your revocable trust names the successor trustees you want, and make sure it nominates back-up successor trustees.  Similarly, check the executors who are named in your will and the agents who are named in your power-of-attorney.

Beneficiary Designations.  Work with your attorney to make sure the beneficiary designations on your retirement plans and life insurance policies are consistent with the dispositive terms of your revocable trust.  Make sure your property is really going to your intended beneficiaries in the proportions you want.

Existing Estate Plan.  If you have an existing revocable trust, your attorney will be amending and restating the trust.  The new trust should specifically refer to and restate your existing trust.  Failure to do so can cause your assets to be distributed in a manner other than what you intend.  The new trust must also comply with the procedures that the existing trust prescribes for amendments.  Check to make sure your attorney has done all of this properly.

Estate Taxes.  If there is a possibility that estate tax will be due upon your death, talk to your attorney about how the tax will be allocated among your beneficiaries and make sure the revocable trust actually provides for what you want.  For example, do you want Susan Thomas to receive $100,000 minus the estate tax attributable to her gift, or do you want her to get the full $100,000, with the tax attributable to that gift to be paid from the residue?

Funding your Revocable Trust.  It is important to make sure your revocable trust is fully funded.  Talk to your attorney about how to do this.  For information about funding a revocable trust, see the blogpost captioned:  Funding a Revocable Trust in Utah on this website.

Plain Language.  Make sure you understand the language in your estate plan.  Remember: If it doesn’t make sense to you, it doesn’t make sense.

Rust Tippett is the author of this blog post.

Copyright 2020 UNLEPI, LLC, a Utah limited liability company.  All Rights Reserved.

This blog post in no way creates an attorney-client relationship between the reader and either Robert S. (Rust) Tippett or Bennett Tueller Johnson & Deere, LLC.  The reader should consult with his or her own estate planning attorney regarding his or her particular circumstances.

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