Video Summary

Does a trust protect my real estate from creditors?  I’ve heard from any number of people saying, “Oh, well, he put his property in his trust so the creditors could not reach them.”  Well, this is a myth.  If you have a revocable trust and you transfer your assets into your revocable trust, it does not protect them from creditors and creditors can reach them just as if you owned it in your individual name.  So, by doing that, you haven’t accomplished anything.  I suggest if you’re concerned about liability as far as, let’s say, a rental property, then I suggest that you get liability insurance or what you call an umbrella policy to protect you against any potential suits by tenants.

If you’re concerned about creditors reaching your property as a result of an automobile accident or something like that, an umbrella policy would also be the answer.  Now, anytime the property has a secured lien, such as a mortgage, well, they’re able to foreclose the property no matter who owns the property and the lean take priority over any subsequent advances.

So, if you want to protect your property from creditors, give me a call at (727) 847-2288 and we’ll be glad to talk to you about how to protect your property from creditor’s claims.

Video Summary

Should I put my homestead property in my revocable trust?  If you ask all the estate planning lawyers as to whether or not you should place your homestead property in the revocable trust, probably half of them would advise you not to do so and the other half would tell you that it is not a problem.

If you do put your homestead property in the revocable trust, you will avoid probate, and that’s one of the big reasons why people set up trusts.  If you do put your homestead property in a trust, it may lose its protection from creditors unless you make specific provisions to leave your homestead property to an heir at law, and then it should continue to have protection from claims or creditors.  Hopefully you don’t have more creditors than you do have assets so it wouldn’t be an issue.

But if you’d like to discuss that issue, please give me a call at (727) 847-2288.

Video Summary

Do you understand your trust?  I would suggest that probably you understood your trust whenever you signed it, but if you’re quizzed about your trust  three or four weeks or certainly a year later, you probably don’t understand it because it’s about 16 pages or longer, and that’s a lot of stuff in it that the lawyer knows about, but you don’t necessarily understand, other than what you remember about the trust, and so I would suggest that you probably don’t understand your trust, but I do suggest that you maybe read it, review it and maybe contact a lawyer to have him review it with you to make sure that it accomplishes everything you would like to have done, particularly as far as whenever you pass away that it goes to who you want it to go to in the manner you want it to go to, and if you have a spouse involved, that the spouse either has flexibility as far as changing the trust after your death or, if you don’t want them to have any flexibility, many times trusts, as well as wills, but particularly with trusts, if they’ve been drafted for eight or ten years and they haven’t been revised, there’s provisions on how they set up an irrevocable trust at your death for tax purposes, and that has some real problems whenever you have an irrevocable trust, particularly for a spouse, which was not giving the spouse any flexibility.

Also, there’s a lot of confusion as to the ability to amend trusts, change joint trusts after one of the joint settlers or grantors of a joint trust passes away.  So I urge you to dust off your trust document, look it over, and if you’d like, give me a call and we can sit down and go through your trust.  And first I’ll ask you what you’re trying to accomplish; and, two, then we’ll  review it to see if it does what you want it to do, and we’ll point out any irregularities or problems with it as far as what it accomplishes.

So if you’d like for me to review your trust, give me a call at 727-847-2288.  Thank you.

Summary

I’m Thomas Mitchell, partner at Waller & Mitchell in New Port Richey Florida, and I do estate and trust work.  Sometimes people ask me, “Is the trust that I had drafted for me in Ohio or Pennsylvania still valid here in Florida?”  The short answer is yes, it is still valid here in Florida.  The US Constitution has a provision in it that says states must honor the laws of other states.  It’s called the Full Faith in Credit Clause, and so if your trust was valid in the state in which it was drafted, then it will be valid here in Florida. 

Having said that, however, there are a couple of reasons why you might want to think about having it redrafted or amended once you get here to Florida.  The first is that if there happens to be any problem with the trust, if there’s a contest to it, if someone thinks you weren’t competent when you executed the trust or that you were somehow influenced to make the trust against the person who’s challenging, then all the witnesses who were there for the execution of the trust are gonna be located in Ohio or Pennsylvania or wherever it was you lived before.  So that’s the first thing. 

The second thing is you should take a look at your estate planning documents any time you have a substantial change in your life situation, and for me, moving to Florida certainly qualified as a life changing situation.  And so when that happens, you want to take a look at your estate planning documents: your will, your trust, powers of attorney, all those things.  And lastly, all the trusts that I’ve seen have in it what’s called a choice of laws clause.  What that says is this trust is to be administered pursuant to the laws of the state of Florida, or if you were in Pennsylvania when it was drafted, typically it will say the state of Pennsylvania because the lawyer that drafted it was a Pennsylvania lawyer and he knew Pennsylvania law. 

Well, now that you’re living in Florida, we don’t want to administer the trust according to Pennsylvania law because very few of us down here are going to know what that is, so that means that we’d have to associate an attorney in Pennsylvania to advise us on what the law says.  So typically when you move down here, at the very least you ought to have your trust amended so that the choice of law provision is changed to say we’re going to administer this trust pursuant to Florida law.  We’re located at 5332 Main Street in New Port Richey.  Our telephone number is 727-847-2288.  Thanks.

Video Summary

How often should I change my trust?  Well, the first question is whether or not you have what they call a revocable trust, meaning a trust that you can amend (because if you have an irrevocable trust that means you cannot change it).  But let’s assume that you’re talking about a revocable trust.  If you reserve the right to amend the trust, I suggest that you review the provisions of your trust at least once a year, particularly the provisions that provide for who receives the assets at your death, and you should change it any time your circumstances change.

In the event that you lose one of the beneficiaries, you would want to consider who you would want to receive that beneficiary’s share.  If you have family problems or domestic problems, you may wish to also change your trust.  So, you change your trust just like you change a will—when your circumstances change.  The laws are changing now in the event of divorce.  Under a will scenario, an ex-spouse is automatically taken out of your will, so even if you left him or her everything, they would not inherit once you are divorced.

I believe that they’re working on trust legislation to provide the same thing in a trust document.  So, this would be another circumstance when you would want to review your estate plan.  Review not only your will or trust document but other documents, such as a living will, if you may not want your ex-spouse to make a decision on a life-or-death situations (such as discontinuing life support) or being named your healthcare surrogate or possibly a power of attorney, which particularly leading up to the divorce, could be particularly dangerous.

So, if you’re going through domestic problems, you may want to set up an appointment to discuss your estate plan and what you can and cannot change while you’re going through the divorce proceeding.  And certainly, after the divorce, you’ll want to review your documents.  If you have some questions about this or would like to set up an appointment to review your trust and talk about any change in circumstances, we’ll be happy to do so and prepare an amendment to your trust.  My phone number is (727) 847-2288.