The Married Couple Trust Plan is intended for married couples residing in California who own real estate or have assets that exceed $150,000.
This plan includes a trust – a written contract between the two of you with regard to how to handle your assets upon your death or incapacity. The Trust document is the most flexible structure currently available, a Disclaimer Trust, which means the surviving spouse will inherit whatever is left at the time of the first death, but will have the option to protect the inherited assets inside a secondary trust that allows the couple to pass twice as much estate tax free to the beneficiaries at the time of the second death. This structure is NOT an “AB” or “ABC” trust structure which would require the surviving spouse to divide the assets at the first death between two or more trusts. If you prefer a more restrictive trust structure because you want to guarantee that upon your spouse’s death, your children cannot be disinherited, then you should consult an attorney.
This package also includes all of the documents set forth below, as well as license to use the following documents twice, once for each spouse: the Pour-over Will, Advance Health Care Directive, Durable Power of Attorney, Special Gifts List, and HIPPA release. For convenience, we suggest completing the first spouse’s document, then saving it as a new document for the second spouse, and making whatever changes necessary (presumably only a few changes will be needed since most spouse’s document mirror each other). If you are domestic partners I recommend consulting an attorney for special issues.
Written instructions also provided with each form
This document is a contract you enter into with yourself. It holds property – usually for you own benefit while you are alive and for the benefit of others at your death or incapacity. A trust is created by a “settlor” (that’s you!), who transfers some or all of his property to a “trustee” who holds that trust property for the benefit of the “beneficiaries.” At first, you will play all three roles. The trust is revocable (changeable by you) during your lifetime. It is a “living” trust because it does not die like humans do, and therefore whatever assets it holds before your death do not go to probate.
This holographic codicil to a Will allows you to amend the Will in your own handwriting over the years without the need of witnesses or notaries. The Trust refers to this list so that you can easily give away furnishing, jewelry and other personal possessions.
Everyone who has a trust should also have a pour-over-will. For those with minor children, this is a very important document. For the rest of us, its’ only a back-up plan in the event that you forget to put an asset in your trust before you die. Whatever you forget “pours-over” to your trust and follows your instructions there. If you have children under the age of 18, then this is the document where you will appoint guardians for them.
This document allows you to name someone to act on your behalf with regard to all of your financial, business and legal affairs in the event of your incapacity. They are called your attorney-in-fact.
This document is a summary of what a financial institution would want to know about your trust, such as the name of the trust, the date of the trust, and the names of the parties involved in the trust. The purpose of this document is to protect your privacy and help answer questions from a financial institution when you open an account inside of your trust.
It is important that you keep your Schedule of Assets document (Schedule A) up-to-date for two reasons: (1) It informs your new trustee where your assets may be found (so they don’t overlook some), and (2) if an asset is for whatever reason not properly placed in the name of the trust, the new trustee could ask the court to place the item listed into your Trust and avoid the full probate process. In order to avoid tax liability, some assets do not belong in the trust. These include any and all retirement and employment related accounts such as 401K plans.
This letter should be sent to each of your successor trustees so they are aware that you have named them.
This document gives you general instructions on how to “fund” your trust. Funding is transferring title to your assets into the name of the Trust after you create it. If assets are left outside the trust, they may be subject to probate.
This document transfers “whatever interest you may have” in real property to your trust. Use this deed if you are married because California community property laws muddies the water with regard to ownership. Even if your spouse is not already on the deed, have your spouse sign also. The deed should be recorded with the Recorder’s Office in the County in which the property is located.
This form must be completed and mailed with your deed at the time of recordation. Failure to do so correctly could result in your real property being reassessed and your property taxes skyrocketing.
This is the letter to accompany your deed and Preliminary Change of Ownership Report when you mail it to be recorded.
If you own a business and have never created a Corporation or LLC, then this document assigns your business to your trust.
This document assigns your household furnishings, jewelry, clothing and other personal property of any kind to your trust.
If you own a general partnership, this document assigns your business to your trust.
Opting out of “item” theory of community property and into “aggregate value approach” gives the surviving spouse more flexibility to fill up the disclaimer trust at the time of the first death. Otherwise, we might have to place ½ of each item in the Disclaimer Trust.
Since the Will does not become effective until death, it can be helpful to name Guardians of your minor children in the event of your incapacity or if you need someone to care for them temporarily (for example, while you are on vacation).
This document waives the Health Insurance Portability and Accountability Act so that the person you name as your agent in your Advance Healthcare Directive can communicate with your doctor.
This letter can be customized for each of your financial accounts in order to request that they transfer ownership to your trust. Never use this letter for retirement accounts.
This letter can be customized for each of your stock holders in order to request that they transfer ownership to your trust. You may need to change title on the stock certificates themselves. Never use this letter for retirement accounts.
This document “assigns” your stock to your trust, but an assignment may not be sufficient. If stock certificates exist, you must reissue the stock.
This is a sample stock certificate so you know what to look for when you are reissuing stock. Usually the corporate President and Secretary have authority to reissue stock. If you don’t have blank stock certificates, you can usually buy them at office supply stores.
This letter prevents your homeowner’s insurance from arguing that “there was no loss to you” when you make a future claim because you had transferred your assets to a trust and they did not insure the trust.
This letter can be customized for each of your life insurance policies in order to request that they transfer ownership to your trust and that they change the beneficiary to be your trust. If you prefer to have your life insurance pass estate tax free on your death, consider setting up an irrevocable life insurance trust instead.
This letter can be customized for each of your employee death benefits, so your employers can change the beneficiary to be your trust.
This letter can be customized for each of your retirement accounts in order to request that they change the beneficiary of your retirement account to match your estate plan wishes. Since retirement plans grow tax deferred, there may be tax consequences if you name your trust as beneficiary. Consult an attorney about the tax consequences if you’re not sure.
This document assigns any interest you may have in a Limited Liability Partnership to your trust. Your partnership agreement sets forth the requirements and limitations of transfer. You must follow the rules of your operating agreement.
If someone owes you money, it should be in writing (a promissory note). This document assigns your interest in the promissory note to your trust.
If you own stock options, this assignment can be used to transfer them to your trust. Ideally, you would be able to do so through the company who gave you the options. You should approach them for a change of ownership form, if they have one.
This form asks you to identify your online assets and passwords. It is intended to assist someone by providing information in the event of your death or incapacity.
Often a blurry notary seal can be considered “illegible” by the county recorder where the document (usually a deed) is being recorded. In that case, you will want the notary to sign this form and attach it to the illegible notarization.
The information you provide on these pages will be very helpful to the next person in charge of your estate or trust. These pages are optional and may be completed by you at your leisure, or not at all. Keep this important information with your other estate planning documents and inform the next person in charge where to find them.