Arizona Estate Planning Lawyer & Attorney : Stephen Follett Law Firm : Probate Law and Trusts : Gilbert, Phoenix, Arizona

If there is one problem with a trust, it is the funding problem. 

Here is one example of what happens when a trust is not funded.  The trust named a person to get real property.  Unfortunately, when the trust creator died, the real property was titled in the name of a corporation.  Consequently, the property did not go the the person named in the trust, and instead the person entitled to get the stock also got the property as an asset of the corporation.

Funding isn't difficult.  But here, the creator's failure to fund the trust failed his desire to pass the property.  If funding is not dificult, why does it fail.   There are two main reasons that trust funding fails. 

 I see the following reasons for a trust funding failure:

• Innocent ignorance by the trust creator; and
• Failure of the trust creator to maintain title of asset correctly.

Ultimately, I believe that the greatest cause is innocent ignorance on the part of the trust creator.  When you buy a "trust document" from a store, an online service, or a document preparer (who might be an attorney) you are not getting the advice and education that comes from a competent and trusted personal family advisor. 

Everyone has some unique family, financial, or personal differences.  Accordingly, one size does not fit all.  Being penny wise and pound foolish can be a very big mistake in estate planning.  

So, if you obtain a trust--educate yourself.   If you pay an attorney, make sure that attorney is committed to ensuring your trust is fully funded and the plan will work.  Ask how many times they will meet with you.   Ask if they prepare a funding toolkit.  Ask what they do to ensure your plan will work. 

Ask lots of questions about their estate planning process, what do they do for you, how does it work, why do they do what they do.  An attorney seeking to be a trusted personal family advisor will be able to explain what they do that makes them different than other attorneys. 

If you have a trust make sure it doesn't fail.  Educate yourself and stay on top of funding.

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I am excited about my brand new office in south Gilbert. Arizona.  It is located at the Offices at Seville in the Northeast corner of Chandler Heights Road and Higley.  It is conveniently located to serve Gilbert, Queen Creek, Johnson Ranch, and Anthem in Pinal County. 

For the convenience of my clients, I retained my location in Chandler Arizona by appointment only.  It is is located off Loop 202 at Cooper and Ray in the fabulous new Cooper Crossing offices.  This Chandler office is conveniently located to serve Chandler, Gilbert, Ahwatukee, Mesa, Tempe and Sun Lakes in Maricopa County. 

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Many people I meet with do not know a "secret" benefit of creating a living trust in Arizona.  Every estate plan including a trust should be drafted with this secret taken into consideration.  After learning the secret, clients are even more excited about the benefits of their trust. 

This secret is how a trust avoids "living probate" in addition to "death probate."  Neither "living probate" nor "death probate" are legal terms, but they aptly describe two times the court and government normally step in to "protect" our interests.

Most everyone has heard of "death probate" when a person dies.  Avoiding this probate is good because the Arizona Superior Court process is slow, public, and can be very expensive.  There have been many books and articles written on the subject, and this is a primary reason why Arizonans create a trust. 

The "secret" of avoiding "living probate" excites my clients when I design their estate plan! 

Avoiding "living probate"  is another very compelling reason to have a trust in Arizona.  Consider what happens if you are severely injured in an accident and suffer serious brain damage, or more commonly you gradually loses the ability to make financial decisions due as you grow old.  You are"incapacitated" and the court and government step in to "protect you."  

When you are incapacitated, a loved one or any interested party can go to probate court and petition to be appointed "conservator" of your money and assets.  Nursing homes have sought to be appointed conservator.  Even if your family agrees, they will have to spend thousands of your money and take unnecessary time, increasing the burden on those caring for you.  When there is disharmony in a family or there are significant assets, the decision of who gets to control your money is often contentious and will cost thousands to tens of thousands more.

Significantly, you will not be able to tell the court your wishes.  Someone that you would never choose yourself may be appointed as your conservator by the court .  This living probate is as undesireable as probate after we die.

A properly drafted trust is the answer to the concern about "living" probate court.  Your trust will designate the person to control the assets.  When you, the owner of the trust become incapacitated, your trusted representative seamlessly step in as successor trustee without court approval or challenge by other "interested" parties.

I was surprised when one client already knew this secret.  His cousin was already taking care of a relative that was incapacitated.  He saw the benefits of a trust and wanted to avoid "living probate."  Having seen that situation, avoidance of "living probate" was very important because he would be living if it happened.

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