[blindlaw] putting a house in trust

[Angie Matney]

Mike,

Dan made some very good points. I believe the Virginia rules of
professional conduct address an attorney drafting a will and acting as
executor for a family member, but I couldn't find the exact rule
yesterday. You could serve as executor, especially given that you are
a natural object of your father's bounty. There would be a problem if
you drafted a will for someone to whom you are not related and the
will named you as a beneficiary.

We have TOD deeds here in Virginia as well. I don't know if they do in
California, but this could be a good option.

As for do-it-yourself trusts, I echo Dan's advice. I recently created
a will for myself on a free site to see what the end product would
look like. The will seemed to be OK, but the site either did not
provide a self-proving affidavit, or it provided one that was not in
compliance with the statutory form found in the Virginia Code. Without
a valid self-proving affidavit, the witnesses to the will would likely
need to appear before the probate court, which could lead to
unnecessary and avoidable delays.

Angie


On 8/25/15, Daniel McBride via blindlaw <blindlaw at nfbnet.org> wrote:
> 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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