[blindlaw] putting a house in trust

[Daniel McBride]

Hi Mike:

In addition to Angie's ideas, I humbly offer the following. By your father
asking about the "process" for placing his home in trust, he is seeking
legal advice. If you are not licensed in California, he should ask an
attorney licensed in California for guidance. Of course, he can draft, and
execute, a trust for himself; the web is full of do it yourself trust
documents. However, these self-drafted trusts lead to disaster much more
frequently than they do adequately serve the settlor of the trust. Doing it
himself certainly is not advisable.

Being his son, I do not see the ethical problem with you serving as either
trustee or executor. Beneficiaries are very commonly appointed to serve as
trustees and executors. Being an attorney, even if ethical to serve, you
will nonetheless be held to a higher standard than a lay person serving as
trustee or executor. But, I do not necessarily see an ethical problem. I
would see an ethical problem if you, in addition to being a beneficiary and
serving as a fiduciary, you were providing the legal advice and drafting the
document.

I would also bring it to your father's attention that Revocable Living
Trusts can be very expensive and somewhat unnecessary if your father doesn't
have any real estate out of state and if he is below the federal and state
thresholds for taxable estates. Sometimes a simple will suffices.

Another thought is that of transferrable deeds on death. I practice in Texas
and Texas just passed the Transfer On Death Deed Act, effective September 1,
2015. With this Act, Texas homeowners can now execute a simple deed that
transfers title to the named beneficiaries upon the Grantors death without
necessity of probate. If California has a TODD law, your father might want
to consider that method.

Now, this having been said, Angie is our resident Estate Planning expert and
she might find it necessary to correct me, which I welcome. Otherwise, I
hope this helps.

Daniel McBride
Attorney at Law
Fort Worth, Texas 

-----Original Message-----
From: blindlaw [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of Mike
Gilmore via blindlaw
Sent: Tuesday, August 25, 2015 4:08 PM
To: blindlaw at nfbnet.org
Cc: Mike Gilmore
Subject: [blindlaw] putting a house in trust

Hi everyone,

I'm a licensed attorney in Virginia and my father lives in California.  He
asked me the process in California for putting his home into trust for my
brother and myself.

Can he draw up a trust document himself stating what he wants to do with the
house (i.e., put it in trust, for whom, and whom the trustee can be)?  He
asked me if I could be the trustee.  I'm a little leary because I would
think a beneficiary as trustee would create ethical problems.  (I already
told him I wouldn't be his executor since I'm a lawyer and I didn't feel
comfortable administering the will when I'm also an inheritor--kinda thought
that was unethical.)

Any advice/assistance on these trust issues would be very much appreciated.

Thanks.

Mike 

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