The Living Trust Advisor. Condon Jeffrey L.

secret that can cost them some fees. Most likely, you hold title to your house jointly with your spouse. It is a logical extension to consider putting your children’s names on the title as well – especially if that trick can prevent your assets from being diminished by the probate process after you die.

      So, if you can prevent your house from going through probate after your death by putting your children’s names on the deed, why have a Living Trust at all? Why not just use that device and forget the Living Trust altogether? The answer is hinted at in the next heading.

      Putting Your House in Joint Tenancy with Your Child Is This Side of Insanity

      You have to be mad, or manipulatively persuaded by a self-serving beneficiary, to put your children’s names on the title to your house or any other real property that you own, because when you put your house in your child’s name, you now subject your house to their financial burdens and risks in life. For example:

      • Divorce: What if your daughter gets a divorce? Your son-in-law will claim that he has an ownership interest in the portion of your house in your daughter’s name. He may not succeed, but your house becomes part of your daughter’s divorce settlement. And as we lawyers say, who knows what some crazy judge will do?

      Or perhaps your son puts his share into the joint names of himself and his wife. Love today is a divorce tomorrow, and your ex-daughter-in-law walks away with a portion of your house.

      • Bankruptcy: What if your son files for bankruptcy? The bankruptcy trustee will attempt to attach your house as an asset that can be used – that is, sold– to pay off your son’s creditors.

      • The Internal Revenue Service (IRS): What if your daughter gets into a tussle with the IRS over income taxes? The IRS will attempt to place a tax lien against your house to ensure that she, someday, pays all her back taxes. With that lien in place, you will have an unbelievably difficult time selling or refinancing your house.

      • Other creditors: What if your son gets into an accident and does not have sufficient insurance? Or what if your daughter is a physician and runs into a big malpractice action? In either case, your house may be sold to pay off their creditors.

      Certainly, you do not have these thoughts in mind when you consider placing your house in joint tenancy with your child in order to avoid probate. But this is the Law of Unintended Consequences; that is, these are the events that are never supposed to happen – and they happen notwithstanding our best intentions to the contrary. I have seen numerous situations where clients have co-owned their houses with their children to save their families the costs and hassles of probate, only to lose all or portions of them to their children’s spouses and creditors.

      And for those who were fortunate enough not to be divested of their homes, they nonetheless suffered extreme distress and anguish from living under the cloud of uncertainty brought about by the litigation in their children’s lives.

Financial Advisor Alert

      Obviously, the dangers posed by joint tenancy home ownership between parents and children apply as well to such personal assets as bank and brokerage accounts. The Law of Unintended Consequences can subject your clients’ years of cash and stock accumulations to their children’s’ problems and risks of life. As a result, you should raise your clients’ awareness of these potential losses if your clients ever instruct you to place their children on their bank and brokerage assets as joint owners.

      In Summary

      All of this brings me back to my main tenet about whether you need a Living Trust.

      Again, if you have real estate, use a Living Trust to transfer it to your beneficiaries after you die, as well as your bank and brokerage assets.

      If you don’t have real estate, you can use joint ownership or ATF accounts to transfer your assets to your beneficiaries without a Living Trust. However, you must be advised that the assets you place in joint ownership with your beneficiary will be subject to your beneficiary’s problems and risks of loss.

      To avoid ending up as a cautionary tale of what not to do, I still advise you to use a Living Trust for the after-death transfer of your assets to your beneficiaries.

      CHAPTER 4

      Establishing Your Living Trust

      Or, No Better Way to Get Started.. Than to Get Started

      The Living Trust, as a concept, is actually easily comprehensible. As I explained in Chapter 2, it is just like an after-death power of attorney in which you authorize a living person to sign your name to documents that transfer your assets to designated beneficiaries after your death.

      Although the concept of a Living Trust sounds fairly simplistic, you have to prepare yourself for the process of establishing the actual document. Before you retain the services of an attorney to prepare it for you, you must do your homework.

      Yes, I said homework– a word that may, for you, still ring with the negative connotation of sitting down at a desk and reading, writing, and researching while you would rather be doing something else that you consider more fun. At least, that’s the first thing that comes to mind when I hear that word. Even though being an adult means having to work for a living and being a slave to a mortgage, you know what compensates for that? No school tomorrow – and no homework!

      But now, your Living Trust advisor is telling you to do your homework. It’s part of your Living Trust training. It’s what you need to do before you set your Living Trust in stone. And this homework involves picking the right attorney and familiarizing yourself with certain basic words and concepts that your Living Trust must contain in order for it to be a valid and effective document.

      Your First Homework Assignment: Selecting Your Living Trust Attorney

      There are many fine Living Trust lawyers in the area in which you live. How do you find the one that you will hire? Certainly, you can randomly select one from Internet or yellow pages listings. I encounter such left-field reasoning almost daily, such as the lady who hired me because she liked the font I used in my yellow pages ad, or the gentleman who based his decision on the fact that my last name is the same as that of his favorite pub in Ireland.

      But if you want an informed opinion, ask your friends who have Living Trusts whether they would recommend their attorneys. If you have no friends, or none who have Living Trusts, then contact the trust department of the bank at which you do business and ask to speak to one of the trust officers. The trust department has officers who deal with Living Trust attorneys on a daily basis, and they will be happy to share their opinions on who they like to deal with and how they have arrived at those opinions.