A common question for many people is what happens to your Living Trust (and your assets) if something were to happen to you and you were to become disabled or ill to manage your own affairs. Who takes over then?
Answer: Your Successor Trustee
When you set up your Living Trust, you will be asked to name a Successor Trustee. This is a person (or persons) that you will name to step in when the time comes to help you manage and distribute assets if and when something may happen to you. During your lifetime, you are the Trustee of your Living Trust. As the Trustee while you are living, you will have the rights and powers to control your assets, buy and sell real estate, and make decisions as you normally would if you owned your assets outright. It is essentially "business as usual". The difference is that if you were to become ill or disabled and unable to manage your own affairs, then your Successor Trustee would be called upon to step in and act on your behalf.
When Does the Successor Trustee Step In?
If you are married, you will share Trustee roles with your spouse. So, the Successor Trustee really only needs to step in if something happens to you if you are single, a widowed spouse, or if your spouse is disabled and incapacitated. Your family may begin to notice a decline in your mental and/or physical health. If so, the family may have concerns about whether you are able to handle your own affairs and if the Successor Trustee needs to step in. The Living Trust document should have the terms and criteria to determine client capacity. In our Living Trust, we typically require two doctor letters stating that the licensed professional has examined the client/patient (here, the trustmaker) and has determined that he or she is no longer able to manage his or her own affairs.
Once declared incapacitated, the Successor Trustee can assume the role of trustee. This process does not require the involvement of a court.
What Does the Successor Trustee Do?
If you are to become ill or incapacitated, then the Successor Trustee would effectively do exactly what you would do if you were alive. They would be sure to arrange for your proper care, make sure that your bills are secured and being paid on time, and manage your estate as you would. If you were to pass away, the Successor Trustee would then be responsible for proper distribution of your assets to your beneficiaries as you have instructed them to be distributed in your Living Trust. They would communicate with the beneficiaries, as well as your estate planning attorney, to help ensure that your wishes are carried out according to your wishes.
What If You're Able to Manage Your Own Affairs Again?
Thanks to modern medicine and a variety of circumstances, you may be able to regain capacity and manage your own affairs again. In our Living Trust, we have what is known as a "come back in" provision. This will allow you to reassume the role as Trustee of your own Living Trust again and the Successor Trustee would step aside until needed again.
If you are located in Southern California and have not had a Living Trust prepared, we encourage you to attend one of our FREE Living Trust seminars to learn more about how our law firm is helping thousands of clients and their loved ones. If you do have a Living Trust already (whether prepared by our firm or not), we recommend that you have your trust reviewed every so often to ensure that your Living Trust is up-to-date with both your wishes, as well as planning strategies. At the very least, you may wish to review who you've named as Successor Trustee and ensure that you have the proper person (or persons) to step in when the time comes in.
To view our seminar schedule, click here.