Jim Kiley talks about Living Trusts - Part 2 Jim Kiley talks about Living Trusts - Part 2 Transcripts:
Mark: And the taxes are reduced, the liabilities on the taxes are reduced somewhat in a trust versus a will.
Jim: Well a revocable living trust has no tax consequence, because the person, the grantor, is not giving up control. They still have control. We use many other types of trust when we talking about trying to save on estate taxes, life insurance trust and things of that nature. But that is often the problem; the best estate plan won?t work if the person creating the trust does not want to give up control. Very often that's what you find. An older person perhaps who may have lived through the depression, has seen some lean times, they want to have control of their money. You could talk about life estates and grantor trust and all these types of things; which will avoid depleting the estate if the person needs to go to a nursing home, which passes on money to the next generation, which avoids possibly estate taxes. But that person has got to give up control, and that's very often what you find is an impediment to implementing some estate funds.
Mark: So disclosure is a key word then. If a client isn?t willing to disclose everything, if they pass away then there is some issues to contend with.
Jim: Disclosure, there was a nice phrase I heard from an attorney called the GIGO; garbage in garbage out. So yeah, we're only as good as the information we're given. So you've always got to give your attorney all the information they need to advice you properly. Garbage in, you're going to get garbage out.
Mark: So it's important if you're going to go with the will, or if you want set up the estate planning?
Jim: Yes obviously a lot of times people come in, and they've heard the catch phrases. You know, ?my friend down the street, she is doing this or that trust and I want to do that.'' People are more and more familiar with terms elder law planning and life estates, and all these things. So very often you find they'll commit, ''I want to do this.'' Then you'll talk to them and you'll say, ''well what's your situation, what's your family dynamic? What are your assets and income?'' And you have to tell them, ''well you don't really need to do that,'' or, ''you shouldn't do that, perhaps you should do this.'' So yeah, full disclosure is key with any attorney client relationship.
Mark: Have you ever been involved in a will or trust that names a beneficially and then the beneficially has passed away before?
Jim: Yes, and if the beneficially passes away before the testator, then the property would pass through the testator will as if the beneficially predecease, and there would probably be a language in that original testator?s will dealing with that scenario. But you do have sometimes situations, I?m dealing with one right now, where the beneficially passes away after the testator, but before the testator?s estate is distributed. A scenario where you're almost doing a double probate, and that happens and it can be more work, but it gets done: solved.
Mark: Not only for the audience but myself, can you describe or define what testator is?
Jim: Testator or the person making the will. Not necessarily the decedent, you know. You've made a will, you're still alive, you're the testator. Very often the term is used interchangeably with the decedent, post death. The decedent, the testator or the person making the will.
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