THROUGH A DECLARATION OF TRUST
MEMORANDUM AND DISCUSSION
If anyone looks through the local office indexes of the County Recorder of Deeds that store up property owners' real estate records and transactions, and then carefully observe how many such owners carry real (estate) property in their own name but not in Trust, their number is staggering! However, the recent dramatic probate court case Schiavo vs. Schiavo ( No. 03-008212-CI-20) in the Circuit Court of the Sixth Judicial District, in Pinellas County, State of Florida, USA, has given a lot to think to many American property owners who do not have a living Trust or even a simple Will document. The invasive legal proceeding entitled Motion of Governor Bush of the State of Florida requesting the trial court, the disqualification of the Probate Judge (see document at: http://sun6.dms.state.fl.us ) and other Federal intervention in that tragic probate court case is revealing much pain and suffering on both sides of that case; and thus speaks volumes about the necessity of real (estate) property owners to focus their attention on this important subject, to either create a living Trust or express Trust as a means of avoiding probate, or in the alternative to have your family lawyer write for you an effective Will document, supplemented by a medical authorization document that will describe with certainty all of the possible medical wishes you may have in case you become severely incapacitated (as Mrs. Schiavo have in Florida, for example).
The time of ignorance about this important subject of life and death is over!
Interestingly, since November 14, 2003, when the Schiavo case was played in the U.S. national and international media to the astonishment of high level Members of U.S. Congress, and even the U.S. President-brother of the Governor of Florida, and of course, the Christian Evangelical leadership of America not so much has been done visibly at the local County Recorder of Deeds, in terms of decreasing the staggering number of property owners keeping property in their own name. After such a dramatic, and tragic probate court case was played in the national and international media, surely one would expect the number of American
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owners who keep property in their own name to decrease significantly, but this is not the case at all. Well, as it stands now, property owners in America continue for some unexplained reasons to keep that real (estate) property in their own name but not A in Trust , as Trustee(s) of Trust No, the status quo seems to be maintained on this important subject. No, not many people have created a family Trust or called their family lawyer to draft a simple Will for them. This is incredible in our modern and advanced era!
Surely, the Schiavo probate court case in Pinellas County (State of Florida) should have prompted millions of American real (estate) property owners to take action so as to protect themselves from the kind of potent, tragic, and so dramatic circumstances that probate case in Florida has revealed publicly...and that can ruin someone's life! The action, of course, should have been to either create a living Trust (supplementing it with a medical authorization ) or, have a family lawyer draft a Will (supplementing it with a medical authorization )...at least some written document that expresses the intent about how one's property is going to be disposed of or transferred at death. A living Trust or even a Will would be better to have at death than no document at all. Dying intestate is not a very pretty legal picture (translated) at the probate court! That is for sure, as this issue, inter alia, will be addressed in the next pages of this memorandum and discussion.
Innumerable probate court cases have demonstrated that no one can predict accurately the outcome of such cases. The States' and other menu legal fees are quite impressive, and vary against the estate of a deceased who died intestate (no Will, no Trust). In such cases, the legal fees alone can potentially devastate the economic future of an heir that expects erroneously much of his/her parents estate or, grandpa or grandma s estate for that matter will pass on to them without significant probate costs! In fact, there are States which have legally fixed hefty probate fees (by State statutes), and therefore, in such probate cases in those jurisdictions the outcome will not be very pretty, as you will note in some of the portions of the discussion and memorandum in the following pages.
As you read this discussion and memorandum, it is necessary for you to do some research into the websites cited herein, and also to do some modest reading of the legal authorities quoted (some verbatim) herein. It is good for you to be in tune with the law of Trusts, because you will be a Trustee of your Trust a very prestigious and responsible stewardship position taken in life inherent in the law.
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II. Which one should I choose: a Will or a Living Trust ?
MEMORANDUM AND DISCUSSION ON LIVING TRUSTS, WILLS, INTESTATE
AND CONSERVATORSHIP PROCESSES ; AND A STERN WARNING TO THOSE
WHO PROCRASTINATE, CONTINUE TO PUT OFF CREATI NG A LIVING TRUST
Section A . About a "Will" document and the Probate. #top
A Will is subject to the Uniform Probate Code, and consequently to the local Probate Court in your county of residence, where your property is located.
By way of contrast, and in general, a living Trust (Declaration of Trust) avoids probate and is not subject to probate and the Uniform Probate Code; and, therefore is exempt from probate proceedings. You can read about the above subject on the Internet, on a typical State Code Annotated (general definitions), for example, at this website: http://data.opi.state.mt.us Here, you will notice Section 72-1-103 ( Montana Code Annotated, 2005), the General Definitions about a Will and a Trust , and Trustee . Notice how subsection 53 defines Trust and Trustee , all in line with Prof. of Law George G. Bogert treatise on the Law of Trusts. The same you can read at: www.law.cornell.edu/uniform/probate.html ; or, at this website: www.scselfservice.org/probate/finan/LivingTrust.htm ; or at this website: www.estateplanningattorneyatwills.com/TrustFacts.htm ; or at this website: www.sfgate.com/cgi-bin/article.cgi? (Read about Marilyn Monroe's estate in the probate court. Or, you can read some about what happened to the billionaire Howard Hughes' estate in the probate court in Texas and in California: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=457&invol=164 [this is a U.S. Supreme Court case dealing with the billionaire's legal residency issue, for purposes of probate process; the case is titled: California vs. Texas, 457 U.S. 164 (1982)]. This case is very interesting and worthy to be read in its entirety.
There are so many people in America who pass away without having signed and executed a simple Will , let alone a living Trust document. Technically, in law, it is said that they died intestate . This legal term intestate comes from the Latin word intestatus , and translates having made no Will . For these people and their inheritors in particular, the probate situation will not be a pretty one.
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The State of their residence at death will have to deal with their post-mortem (estate) property transfer(s) to heirs at high costs in most cases; the problem is seriously aggravated by the absence of a Will document at the time of death of the estate owner; and in consequence, there will be ongoing delays during the probate time. As alluded above, the State would be happy to probate these people's estates...but the legal fees are not going to be that few and small as it will be evident after the reading of the next pages herein. Their Estate Settlement Costs funnel so called by some, in derision has in view the following:
(1) their business interests as, for example, in the probate case of famous lawyer (and founder of DHL shipping company Larry Hillblom); although he died not exactly intestate read his story at: www.estatecontest.com or, see more at this website: http://dna-view.com/hillblom.htm or, for another example, read the website which discusses Marilyn Monroe's probate court process of over 15 years; or, as we learned above what happened to billionaire Howard Hughes' estate in the probate court of several States...incurring delays of some 15 years (website above).
(2) their real estate property interests as, for example, in the probate case of another famous American Peter Jennings (anchorman at ABC News), whose estate is now (2006) in probate court in New York ( http://gayorbit.net ); or, see story of Texas oil tycoon J. Howard Marshall whose young and beautiful model and wife Anna Nicole Smith (now deceased as of July 20, 2007), now seeks more wealth from his mega estate (over interests of his heirs): http://abcnews.go.com/Entertainment/SupremeCourt/story
(3) their personal property interests as, for example, in the famous case of a very high level U.S. diplomat, former U.S. Ambassador to France, Hon. Mrs. Pamela Harriman (see, her story in the Newsweek magazine dated June 2, 1997, page 77); or, for contrast, take for example the famous case of Calif. billionaire J. Paul Getty (a winner in the federal court system), due probably because he had a Trust C see, his son's story in the Federal Appeal Court (9 th Circuit) case entitled Jean Ronald Getty vs. Commissioner of IRS, 913 F.2d, 1486 (1990); or, see for example, the following three U.S. Supreme Court cases: Halvering vs. Hallock, 309 US 106; Halvering vs. Clifford, 309 US 331; Halvering vs. St. Louis Union Trust Co., 296 US 39 (1935)....all dealing with Trusts and powers of Trustees.
(4)their life insurance interests (one of the most coveted probate item).
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(5) their securities certificates interests (such as Bonds, Stocks, etc).
The probate Court's so called, Settlement Costs A funnel , for example, will draw costs against the decedent's estate, as follows please read carefullyhere: (1) Real estate sales fees; (2) Probate taxes; (3) Securities sales fees; (4) Excise tax on inventory; (5) Auction expenses; (6) Property taxes; (7) Capital gains taxes; (8) Income taxes; (9) Estate appraisal fees; (10) Probate court fees; (11) Attorney's fees (if you need 2 expert probate attorneys, your fees will be jumbo); (12) federal Inheritance taxes; (13) Estate taxes (and lots of them!); (14) Administrative fees;
(15) Accounting fees; (16) Executor's fees; (17) Guardian's fees (if deceased will have minor survivors); (18) Conservator fees; (19) Funeral expenses; (20) Medical expenses; (21) Trustee's fees (the probate court appointed as Trustee); (22) Gift taxes; (23) Storage expense; (24) Recording fees; and, of course, other unpredicted fees that always seem to emerge in the final days and hours of the probate process of the deceased!
Long ago, the probate system in America was established as one orderly way of transferring the property of the deceased to his/her inheritors. The probate system was designed originally to protect the inheritors of the deceased person! As already noted in the famous probate court cases, such as those of Marilyn Monroe, Larry Hillblom, Pamela Anderson, J. Howard Marshall, Howard Hughes, Peter Jennings, and others, the public perception has shifted over time, because it was reported often in the media that it is tantamount to a legal nightmare to be part of the inheritors bench! A specialized firm on the Internet reports some of the abuse and disgust about the probate process on its own website...so dramatic that defies the legal restraints of the law. Read their report at: www.lectlaw.com/files/est05 Here in their report, a deceased by the name Robert Sterling Clarks (presumably their case) probate court costs were as follows:
(a) Costs of administering his estate (in New York)......................$ 856,747
(b) Costs as to the Executor of the estate (as above)....................$2,965,683
(c) Costs as to the probate attorney.............................................$1,065,530
Well...when people read these kind of knee-jerking stories about the probate process abuses, it surely translates negatively at the real estate property indexes of the local County Recorder of Deeds, and consequently the number of real property owners keeping property in their own name but not in Trust as a Trustee continue to remains staggering!
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With the advent of baby-boomers soon to take place (in approximately 10 years from now), standing to receive some $13 Trillions worth of real (estate) property value (by way of Wills, Trusts and other private arrangements), there will emerge more stories in the media such as those mentioned above. The most urgent question remains whether the baby-boom generation has taken to heart what has happened in the past to others at death, so that they will not repeat that history! It will be very interesting to observe this $13 trillion dollar worth of property value transfer coming soon on the dockets of real (estate) property Deeds of our States! To be sure, the probate process is necessary when the deceased's signature is needed to transfer the (Warranty) Deed to the property, or the Stock certificates (and other securities), or the checking and savings accounts to the intended legal beneficiary or inheritors. The probate system itself is therefore not to blame for the abuses we hear in the media. Without probate, the problems of the deceased and his/her need for signature on the aforesaid documents would not be solved in an equitable way! No one can deny this in good conscience.
To avoid being (potentially) exposed to the probate jurisdiction at death (together with your inheritors or beneficiaries of your small or great wealth), the question arises whether another type of laws, such as, for example, the Trust laws may be the solution to so many people in America especially the baby-boom generation and their (living) parents and grand-parents. We will explore this Trust law subject in the next information-discussion that follows. But, before that, there must be said something about conservatorship process in America.
Section B . About the Conservatorship - Brief Discussion#top
There are many people placed under conservatorship (guardian) authority due to their physical or mental limitations (or severe impairments of same). Like probate process, conservatorship is caused by the need for (such) a person's hand signature when due to physical or mental limitations that/their signature cannot be obtained for transfers of property, for example. A conservatorship happens during an individual's lifetime, and is generally imposed by a court of law. With regard to who will be the conservator , the court looks to the spouse (if married). For those single individuals, widows or widower, the decision rests with the court. Due to the expenses involved in a conservatorship process (as in the probate
Page 6 of 20.process), publicity, and delays associated with such a process, and the question of who will a judge choose to be an individual's conservator , the solution to this hardship is the creation of a living Trust (before the hardship arises). This would allow avoidance of the court-imposed conservatorship and, also will allow you to choose the person you would like to manage your property (assets, etc), when and whenever you cannot do so.
In short, conservatorship is similar to probate a court-imposed process. The difference is that conservatorship occurs during an individual's lifetime, but the probate occurs while an individual is dead (and gone). Thus, the process of conservatorship will solve the problem of obtaining an (impaired) individual's signature for transfer documents when the signature is not available, or as such, legally invalid due to the person's physical or mental limitations (or impairments).
Some people use a Power of Attorney in their judgment to avoid the process of conservatorship; but, the only effective legal instrument would be the Durable Power of Attorney , because all other POAs become ineffective at death of the principal or after his/her incompetency. In summary, the living Trust alternative will solve most of these problems arising from either probate or conservatorship, as we observed in this brief discussion. You can find more about conservatorship and its disadvantages (or about probate and disadvantages), on the various Internet web sites. Creating a revocable living Trust now may well spare you and your dear ones family members from the myriad of problems that one will face during the probate or conservatorship alike.
The creation of a revocable living Trust (or inter vivos Trust, or express Trust so called), through a A Declaration of Trust , following the Law of Trust, as written long ago by Prof. of Law George Bogert, weaving with other legal features of the Uniform Trustees' Powers Act, and the latest Uniform Trusts Code; together with some important federal rights incorporated into the Trust's text (and of course the recording act of the QCD evidencing Trust ownership) would provide a viable way to avoid a probate or conservatorship. Moreover, your inheritors will be happy that you spared them from the complicated process of probate and conservatorship.
As noted earlier, a living Trust is capable of transferring all of your property to the inheritors without being involved into the probate or conservatorship issues; but this process must be accomplished in accordance with the terms of the Trust.
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Section C . Federal Estate & Gift Taxes--A Brief Discussion#top
(1) The Rules: During life a donor (of money) (a parent, for example), can donate (money) to his/her child the sum of $10,000.00 per year, per person (so donated) as a gift and tax free.
(2) The Rules: A deceased's real property valued at approx. $2,000,000.00 (reflecting current U.S. Internal Revenue Code table Sections 2505 & 2010 ) can pass at death tax free to his/her beneficiary.
(3) The Rules: During life and at death of a spouse, an unlimited amount may be transferred to a U.S. Citizen spouse C tax free; and, an unlimited amount may be transferred to a (IRS) qualified charitable organization...(these being the Rules of exception).
(4) The Rules: ( Penalties) If more than $10,000.00 is being transferred to someone other than a spouse, as stated above, a gift tax must be filed with the IRS income tax return for that specific year at issue. If the estate amount is in excess of the $2,000,000.00 at death and has not been transferred to the spouse or charity, the amount of over the $2,000,000.00 will be subject to the federal estate tax at a ratio beginning at 37% and going as high as 55%. For example, if the estate is worth $2,000,000.00 (as the 2006 IRC reflects), the federal estate tax will be approx. $400,000.00!
(5) The Rules: ( Capital Gains Tax) Selling appreciated assets would trigger an income tax levied upon the gain so realized thereon. Any selling of an investment that has increased well above its original value can trigger a federal capital gains tax but, it is more problematic when such a potential tax levy would discourage a surviving spouse from liquidating or selling his/her real (estate) property.
In summary, the creation of a living Trust is a solution that overcomes all of the obstacles and disadvantages identified and duly noted above in this discussion and memorandum. For example, in a living Trust scenario, a married couple (U.S. citizens) would have a huge savings (of over $300,000.00) instead of federal estate tax, as alluded to above. A married couple's living Trust is also capable of transferring all of their (real estate) (and personal) property to their own intended (and bona fide) beneficiaries!
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Section D . About Living Trust (Declaration of Trust) *** Discussion and Information***#top
1. Brief Information and history of Trusts.
In England, some parts of the Law of Trusts has been codified in the Trustee Act ( see, 15 Geo. V, Ch. 19, 1925), and the Charitable Trusts Act ( 15 & 16 Geo V, Ch. 27, 1925 ). Most of the principles of Trust Law in England is stated in their judicial decisions.
In the United States of America, about the year of 1935 (a little over 2 years after the anti-monopolies laws were enacted, namely the Sherman Act Title 15, Sec. 1, of the U.S. Code, and then the Clayton Act in the same Code), the American Law Institute published an authoritative body of laws on the subject of Trusts entitled Restatement of the Law of Trusts which is cited generously by all States and Federal courts, including the U.S. Supreme Court. The emeritus professor of law George Gleason Bogert also cites the authoritative Restatement of the Law of Trusts in his highly prestigious treatise on The Law of Trusts alluded to herein.
At a later time some 30 years later on in 1964, a special Commission was established in the United States (sort of a quasi-federal type of institution that still functions today) to deal with this Trust subject. Since that time, they continue to meet and discuss improvements of the Trust laws, and publish their enactments about certain Trust laws codifications, laws uniformity, and or repealings thereon, and many other such things. This interstate commission authority is named, the National Conference of Commissioners of Uniform State Laws ( NCCUSL). Their place of business is in Chicago, State of Illinois. This Commission (NCCUSL), in 1964, had enacted the famous Uniform Trustees' Powers Act ( UTPA), and also the Uniform Trust Act ( UTA). ( Note: Most of these Trust laws I have incorporated them into my own Trust text). Their latest enactment is called the Uniform Trust Code ( UTC) which seeks to weave in some portions of the preceding Act ( UTPA). This is a very impressive and authoritative (quasi-federal) body of law as one can observe from its member composition on their Internet web site!
However, most of the UTC is primarily a default statute according to its own text, at Article 1, therein! Most of it can be overridden by the (written) clauses contained in the Trust text so claim the experts on this matter.
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2. Some definitions of the living Trust concept.
The term living Trust is a popular name for Family Trust , or Inter Vivo Trust , or Express Trust these , all mean the same thing. More technically, the term living Trust would be compatible with the express Trust (the one which I, and many Federal courts authorities follow closely from Restatement of the Law of Trusts and Professor of Law Emeritus George G. Bogert's Trust law treatise).
The living Trust or express Trust arises because an individual owner of a real (estate) property has the power and right to create it (i.e. the living Trust), and he/she expresses the intent to create the Trust, and then goes through the required formalities (as the Restatement of the Law of Trusts describes) to actually create an express Trust or living Trust . Some experts in this field of law define it this way, that a living Trust is a legal entity that is created by the owner of a real (estate) property (who has the power and right to create it) to own, manage and distribute (such) property assets (in accordance with the terms in the living Trust document more precisely in accordance with the owner or creator of Trust's express intent or desire). Evidently, his/her intent or desire must be clearly stated in the text of the Trust document.
3.Creation of an express Trust or A living Trust (by way of a A Declaration of Trust ).
In order to create a living Trust or express Trust , the creator of such Trust must own the real (estate) property of the intended Trust either entirely or partially. If he/she owns it partially, that part is called equitable interest or ownership, and therefore it would be attachable to his/her Declaration of Trust document(s) process, thus creating the express or living Trust entity.
The Declaration of Trust by the Trust creator must steer clear of any federal liens or processes pending or forthcoming (like IRS liens and pending lien processes, for example), or any other civil attachments recorded with the County Recorder of Deeds or other agency of State(s) government before the execution of the Trust document(s) by its creator. This aspect is very, very important, and the failure to steer clear from such liens recorded thereby will invalidate the Trust! Thus, a living Trust out of necessity and in compliance with certain rules that are
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established in the Anglo-American system of jurisprudence must generally arise through a specified written document as alluded to above. Moreover, pleaseread carefully here: the owner of a real (estate) property expressing the intent (in writing) to create his/her living Trust must make the required (official) transfer of his/her property via the Declaration of Trust document and the appropriate Deed of transfer (usually a QCD will do) to the Trust. At this point during the process, he/she now becomes Trustee declared so by the official notarized document, and as such, he/she now describes the real (estate) property that would be the subject of the Trust in such document (QCD). Thus, he/she it is said that manages the Trust property so transferred into the Trust for the benefit of his/her heirs (or beneficiary of the Trust) of course, this includes the creator(s) of the Trust).
The term Trustee is applied to the person or persons (or even to the creator) of the Trust, for example, who manage(s) the Trust in accordance with the written terms or provisions in the Trust. The alternate Trustee who is designated in the Trust, and adults (normally children of the creator or Trustor of the Trust) would serve as Trustees in the event of the incompetency or death of the creator of the Trust. These persons are also called beneficiaries of the Trust more precisely the persons expressly designated so to receive the income and the principal (sums of monies, real property) of the Trust either during the life of creator or upon his/her death.
Therefore, all property of the creator of the Trust must be in Trust (listed in the Trust's schedule sheets) and also beforehand pass into the Trust formally via official recording of the Title of such property with the local County Recorder of Deeds in the name of the Trustee(s) or the Trust upon the death of creator. Failure to do so may trigger an unwanted probate process on the property found outside the Trust upon death of the creator or settler of the Trust.
4. Power and Rights of the Creator of Express or Living Trust.
It is interesting how the eminent professor of law George Gleason Bogert describes the right and power of every property owner to create a A living Trust and dispose of such Trust property:
"In general, every person competent to make a A "Will", enter into a contract, or hold the legal Title to and manage property, may dispose of it as he chooses, and
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sui juris has the power to create a Trust, and dispose of his property in that way . He further states that: If one may legally convey his property absolutely, he may convey it upon Trust, or declare himself to hold it upon Trust ( see, Bogert on Trusts Hornbook Series , 3 rd Ed., Ch. 1, p. 21 Handbook of the Law of Trusts, Introduction and history). The Emeritus Professor of Law also states that:
"A Trust may be defined as a property right held by one party for the use of another , and that, he himself (the Trust owner) can be one of the beneficiaries of the Trust" (see, Bogert, supra, p. 1).
In short, the Trustee(s) hold(s) the Trust property for the benefit of the heirs or beneficiaries . His/her obligation under the terms or provisions of the Trust is said to be equitable .
5. Beneficiary and subject-matter (property) of the Trust.
It is very important that the living Trust or express Trust property, and also the beneficiary of the Trust must be described or identified with certainty! The Settler's (or Creator's) intent must be therefore expressed in writing, and with certainty not merely in his/her mind ( see, Bogert, supra, p. 24). Thus, all of the foregoing requisites and formalities must be checked out in order to have a viable living Trust text which will overcome potential defects and confusion. As an example given here, in order that the Trust owns certain real (estate) property, the Deed document of such property must be changed, so as to truly represent Trust ownership . This is done by the Creator of Trust (Settlor) at the time he/she causes the Trust to arise (in writing); any savings and checking accounts, Certificates of Deposit, Bonds, Stocks and alike securities (as defined by the securities law of Title 15, of the United States Code), must be transferred to the Trust by the Creator or Settler of the Trust in order to avoid triggering of a potential, unwanted, process of probate. A very important element of the funding of Trust constitute the transfer of the Creators assets to the Trust that he/she creates (in writing). If the Creator of the
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Trust happens to be famous (for example), he/she must prepare a schedule list of the famous personal property and make it a part of the living Trust that is created. Even the regular fox should do this preparation.
In the event that a court of law (usually a probate court) may be called upon to decide certain matters dealing with a Trust, the courts follow closely the doctrine of cy-press (according to an equitable doctrine so named, and applied to the interpretation of Wills or Trusts as nearly as possible to the intent of the testator or the settler, respectively). Therefore, every Trust must have some property as its subject-matter, and the beneficiary must be clearly identified. The Trust property must be described with certainty, and the Trustee(s) must be clearly designated in order to overcome defects and confusion. The Trustee's obligation must be to apply defined or ascertainable property to the benefit of another ( see, Bogert on Trusts, Third Edition, p. 85). This eminent Law professor states that:
" The Trust property must be some interest recognized by equity as capable of ownership and as transferrable" (Bogert, supra, at p.85). Some experts on this subject (on the Internet) discuss these matters much the same (see, e.g. http://www.scselfservice.org/probate/finan/LivingTrust.htm ).
6. Other matters to be considered and discussed.
The Trust law in the United States has been considered and discussed in the official proceedings of its courts, by highly skilled judges of such Federal and State courts; by eminent Law professors such as George G. Bogert; and, Scott on Trusts, Wills and Estates, Ch. 7, 4 th Edition by Jesse Dukeminier and Stanley M. Johanson; and of course many others. The Federal Rules of Civil Procedures 11 and 17 of the Federal courts of the United States (as well as the laws of various States), enable a Trustee to appear before any Federal judiciary tribunal and litigate or defend the Trust. Moreover, the Federal Judicial Code Title 28 USC , Sec. 1654 also would enable a (person) Trustee to appear and defend the Trust, if necessary. If Trustee did not involve A trust property in any business or transaction, then the courts (do) usually dismiss any frivolous attempts to maintain a court action against such a good and responsible Trustee. On the other hand, if the Trustee acts on behalf of the Trust and involves trust property in any business or transaction, then the Trust becomes liable if the Trustee has done some wrongs; and consequently, the
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liability would accrue against the Trust (as, for example, in the Pamela Harriman's famous case cited herein). However, as noted in this memorandum and discussion, abundantly, the Trust laws clearly indicate that the equitable interests of people could be held in Trust for the benefit of children (see, Restatement of Trusts, Sec. 83, p. 143) so cites Professor of Law Austin W. Scott of Harvard Law School ( The Law of Trusts, Third Edition, by Prof. of Law Emeritus Austin W. Scott). The law also indicates that a person's equitable interest could be held in Trust , not only for the benefit of children (beneficiaries), but also for the benefit of the creator or settler of Trust; and, if the creator/settler is childless or has no living relatives, he/she may designate another.
Many of the rights and powers of the Trustees have been codified in one of the famous American civil laws entitled the Uniform Trustees' Powers Act ( UTPA, adopted by most States). The recent Uniform Trust Code legislation maintains all of the rights and powers of Trustees (as in the UTPA, for example) (see discussion at the web site mentioned above at subsection 5). The express Trust or living Trust may be categorized as revocable and irrevocable. Both are available to those who make requests either orally or in writing at the respective web site; or upon further communication with the composer and law consultant herein, or his duly authorized representative.
Section E. About Advance Medical Directives Documents . #top
During the Florida's Schiavo probate court case and thereafter, a lot of public discussion has generated in favor of the creation of living Trusts and, of course, the writing of health documents so called living Wills or in the legal parlance known as Advance Medical Directives . Surely, the Florida's Schiavo case has demonstrated how inadequate the legal system responded in that matter...even as the highest U.S. Governmental authorities intervened, though unsuccessfully, to save Mrs. Schiavo's life from the terrible clutches of the probate court in Pinellas county! This probate court case has motivated a lot of people in this country to do something about their future medical situation if it would deteriorate to that extent.
Even before the Florida's Schiavo probate court case, some legal authorities and experts in this field have written extensively about the importance of advance medical directives they play in the life of a person afflicted with a terminal illness. For example, Dr. Alan D. Lieberson, M.D, J.D., has written a very helpful book
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(512 pages--31 chapters!) on this subject, in 1995, treating this medical subject at every State level, and listing every possible legal right of such a person fighting in a terminal medical situation much the same as Mrs. Schiavo did against the forces of the probate court. This book is a marvel of legal science, given the fact that there are other medical experts in the thousands (not so willing) who contemplate to keep the status quo undisturbed! This book should be in the hands of every good faith lawyer and doctor who desires to lay to rest situations as those similar to Schiavo.
In this book, you will find samples of A Durable Power of Attorney , actually written A Advance Medical Directives applicable from State to State, and much, much more. Some people call these things cumulatively A living Will , and they are not that far off.
This book titled Advance Medical Directives by Alan Lieberson, M.D., J.D., discusses a wide range of legal-medical issues which a terminally ill person may face, and how a competent lawyer/doctor can help such person take a decision that is pleasing to himself/herself and his/her family or loved ones. For example, in chapter 2 of his book, this eminent doctor and lawyer discusses the evolution of legal concepts permitting the development of advance medical directives, and of course he treats a very precious right, namely, the right of self-determination and its origins under Common Law and the Federal Constitution ...topics that are not as clearly defined in the confines of the probate system in our country. It seems that even public policy should be more clearly defined as in favor of life than in favor of procedural process in the probate courts of our nation.
In short, there are reasonable basis to hope that the probate lawyers, and trust lawyers in particular, can facilitate more modern and creative ways of protecting the terminally-ill person through legal documents, such as the Advance Medical Directives spoken of herein, and of course, the various durable power of attorney which help the terminally-ill person and his/her family/loved ones make sound decisions under most unusual set of medically dictated circumstances. The Living Will Statutes are very helpful in guiding the terminally-ill and his/her family or loved ones, but in the final analysis, the ones suffering the brunt of pain and affliction under those terrible circumstances need some more than mere legal statutes and court procedures that seem to preserve the status quoas adynastyjurisdiction in the imperial Rome of 300 AD! The terminally-ill person needs love and loving support with every passing hour of his/her life! And, these things can be reasonably accomplished trough the medium of legal documents aforesaid.
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Section F . STERN WARNING TO PEOPLE WHO CONTINUE TO DELAY CREATING A LIVING TRUST#top
It is estimated that out of 6-7 people who die every minute in the United States (pursuant to some experts data), very few knew while alive that approx. a decade ago in the United States, a major undertaking was under way (in the form of an institute with its headquarters in Orlando, State of Florida), that it established points of business in every major city of our nation, to identify probate property , and then buy it from the P/R at various discounts ranging from 30% to 50%! What this means now is that, the institute has trained countless number of people (and many brag to getting rich from real estate property bought from probate), and still keeps training them at the tune of some $3,000.00 per seminar; and, after these trainees complete their course in probate property acquisition skills, they will graduate and receive a diploma called Certified Probate Specialist that sort of entitles them to deal with the particular probate (case) designated P/R (Personal Representative) who can facilitate the super deals at discounts mentioned above!
You can read all about this unprecedented nationwide undertaking which the institute brags to make some people rich out of property sitting in the probate , at their own (institute's) web site: http://www.jgbanksinstitute.com (Helloooo, dear American property owner who keep real estate in your own name but not in Trust, how do you feel about it?). Oh...and this aforesaid institute has jumbo-size post cards that they mail by the thousands to U.S. households, inviting people (investors and alike) to come to their meetings; or even call the institute's toll free number to order all the materials needed to learn to become a graduated probate broker ... that sort of entitles you to get rich out of the property sitting in the probate ...that you can buy it at some 30-50% discount (distressed property?).
"Their post card has this to say, publicly, to anyone reading the card: I' ll give you a complete program for identifying, negotiating, and securing all types of real estate sitting in probate . Envision what it would be like to make a year's salary on one real estate deal and to do it deal after deal " . The large post card text concludes with this dramatic public exhortation: Make a resolution today to make more money, and next July fourth, you could be celebrating
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your victory in achieving financial independence (signing: the Institute's president)(emphasis mine). The large post card begins with these public exhortation, eye-catching lines: Make this year you reach for financial freedom. And make now the moment you commit to the challenge. If you do, I'll give you $1,250.00 in savings to get you started". They say: "You get a full $1,250.00 off my proven system for finding real estate that's sitting in probate. This is a complete system for locking down the best deal and identifying opportunities for putting substantial equity in your pocket" .
Well, well....the very text of the aforesaid postcard says it all...even to the procrastinators whose real (estate) property will certainly/potentially become targeted by the trained agents of the aforesaid institute which haunts A real estate sitting in the probate . The large, jumbo size, postcard has these eye-catching colored words for the unsuspecting citizen: SECRETS OF PROBATE PROFITS. How this all must be sounding for an indifferent property owner who has some 2, 3, or more inheritors thinking that their grand daddy (or grandma for that matter) has done everything in his/her power to make sure that his/her loved ones and dear inheritors will inherit everything he/she possesses, and that no probate process will be unleashed upon them.
Interestingly, for those property owners who procrastinate now in creating a living Trust to avoid probate (for the sake of heirs), the institute's web site has a very flashy, eye-catching line that reads: HOW TO FIND REAL ESTATE FOR 30% to 50% BELOW MARKET VALUE ....this is what awaits your inheritors, before they can even get a dime from the probate court's settlement process!! And, this is what awaits to happen to your real (estate) property if you would pass away intestate (no Will, or no Trust), or even with a Will !!! However, in the case of a living Trust (created during your life), if your Trust contains all your property, both real and personal, your inheritors will get everything that has been written in the Trust document, thus avoiding the unwanted probate process and....of course, avoiding those probate property hunters that get rich out of your life's long and arduous labor, pain and suffering to acquire the precious real property that you will leave behind to your loved ones!
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And, lest we forget the Marilyn Monroe's probate lasted over 15 years...think about Howard Hughes' probate lasting about the same...and still popping up some weird challengers in court even after a decade! Read this dramatic story in the Howard Hughes' probate at this web site: http://webserver.desnews.com/dn/view and, even see his photo at the end of the story. You can also read some dramatic headlines about Howard Hughes' probate court process at this web site: http://www.google.com/search? hl=en&q=Howard+Hughes+Probate+Court+Estate or, you can read Howard Hughes probate court challengers at this web site:http://query.nytimes.com/gst/fullpage.htmlres=9A0DE1DC1F38F (look for the Archives ) or, if you think that all of these things here are somehow nonsense and that you can somehow overcome the painful difficulties (your heirs will experience) posed now by your procrastination, you can read a U.S. Supreme Court case on Howard Hughes' probate process here: http://caselaw.lp.findlaw.com
This Supreme Court case is entitled this way: CALIFORNIA vs. TEXAS, 457 US 164 (1982). Here, in this case's content, there are two (super) States in our country who needed legal guidance from the highest court with regard to Howard Hughes' correct/legal residency at his death! This Supreme Court case ought to be read by everyone who thinks that he/she (by their heir and their lawyers) can overcome the stringencies of the probate court.
Moreover, the probate court case of rock superstar from Tennessee, Elvis A. Presley, speaks forcefully to those fox who put off creating a A living Trust . Here, in his probate case, it is reported that his estate at death was $12,000,000.00. After the probate ended, all that was left to his heirs/loved ones was a little less than two millions ($2,000,000.00)! No one in our modern and electronic world would be ready to accept that kind of loss to his/her loved ones! You can read all about here: www.asset-protection-information.com
The probate court case of Walt Disney, upon admission of his extensive Will, is very compelling in favor of creating a living Trust instead of a Will .
It is incredible to find out in the public records of the probate courts that even celebrities of the highest order in our nation have not made a living Trust while they were alive, and have relied instead upon a last will and testament (papers drafted mostly by their attorneys) which, as we have noted herein is subject to the jurisdiction of the Uniform Probate Act .... and, enforcedby the probatecourts... much the same as the Schiavo probate case that is discussed in the introduction.
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Reading some incredible and damning (not only knee-jerking!) facts about the probate court process of celebrities such as those enumerated below, it gives you an idea of the magnitude of the indifference and its resultant losses, pain and suffering perpetrated upon the loved ones! Here are then, the celebrities' names, publicly recorded with the probate court in their respective States: Gerry Garcia, John Lennon, Joe DiMaggio, Benjamin Franklin, Elvis A. Presley, Richard M. Nixon, Harry S. Truman, Franklin Delano Roosevelt,Jacqueline K. Onasis,Robert F. Kennedy, John F. Kennedy, Lyndon B. Johnson, Herbert Hoover, Dwight David Eisenhower, Mamie Doud Eisenhower, Sir Winston Churchill,Thomas Alva Edison, Doris Duke, Charles Dickens, Diana Princess of Wales, WiltChamberlain, Agatha Christie, Howard Cosell, Charles Darwin, CarlosCastaneda, Truman Capote, Lenny Bruce, Sonny Bono, Erma Bombeck, Noel Coward, ArthurAshe, Sir Arthur Conan Doyle, Graham Chapman, Edgar R. Burroughs. Imagine what the situation may be in the probate cases of untold number of A non-celebrity persons, and the many, many common citizens who died intestate (without a Will), and also the many millions of common citizens who died having a Will!!! You can read all about the above named celebrities here: www.morristrust.com/newsletterDetail.aspx .... and, at this web site, over here: http://www.celebritycollectables.com/cgi-bin/ezshopper/loadpage.cgi.... Also, you may read the entire Last Will and Testament of Elvis A. Presley filed with his local Probate Court, over here: www.ibiblio.org/elvis/elvwill.html In fact, if you like to read for your own information about these things, you can indulge in (a lot of reading) the more fanciful 12 pages written Last Will and Testament of Mr. Richard M. Nixon at this web site over here: www.courttv.com/archive/legaldocs/newsmakers/wills/nixon.html
Furthermore, you could actually order, for a small fee, the celebrities' probate papers, such as Wills , Codices , Testaments and the like and study them with an open mind to prove to yourself whether you should do what they did for their loved ones unleashing a painful probate process upon their innocent heirs over here: www.celebritycollectables.com/cgi-bin/ezshopper/loadpage.cgi
You may view (probably in disgust!) a very interesting family drama running through the probate court, that of the very famous Kennedy, involving guardianship legal issues, i.e. conservatorship law and that this family battle (as of June/2005) goes public in Boston: www.boston.com/news/local/massachusetts/articles/2005/06/04/kennedy_family_
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Finally, if you are one of those hardened skeptics, you can read about our American President's Harry Truman and Truman Family File (Box 34), dealing with his (immense file of) family probate case, the Last Will and Testament in the probate court Settlement Statements, Fees paid , and also a Final Settlement for various years, at this web site: www.trumanlibrary.org/hstpaper/burrus.htm
The most recent nationally and internationally played probate court case of Schiavo, from Pinnela County, State of Florida, has demonstrated that not even the Congress can successfully intervene in the affairs of the probate court!
The foregoing aspect should prompt all American property owners to STOP DELAYING to CREATE A LIVING TRUST which avoids probate process (after you pass away), for the sake of your loved ones. The fact that there are out there some armies of skilled Certified Probate Specialists continuing, for more than a decade, as noted above, to roam the probate courts' files in our nation should give you a big pause, and a very STERN WARNING that your delay about creating a living Trust will, in the end, surely and legally work against you! Your inheritors (loved ones) ought to be spared the pain and suffering that quite often results from and during a probate process...especially if you are rich and famous; even a modest millionaire (or even a worker or intellectual) property owner who worked very hard and diligent for your property that you intend to pass in its entirety to your loved ones and not otherwise through the probate court's Settlement Costs funnel.
Warning: Replication of the foregoing text in any format, manner, or other means is hereby prohibited.
The foregoing text was researched from public and some private sources, assembled, and composed by Anthony Ianosel, a Legal Consultant and Researcher, and a good standing Member of the American Bar Association (Criminal Justice Section).
No particular copyright privileges are claimed or implied, and neither authorized; but anyone who uses the text for profit may be subject to the appropriate legal remedies for such unintended uses. This text is for educational purposes only, and not for a certain, particular, use in a specific case-setting; nor it may be claimed or adopted by any user thereon. Always consult with a technical or law expert representative in your decision making process such as the one discussed in this memorandum, for example. No other claims to copyright or trademark laws of the United States are inferred by the composer herein; but any user who intends to make a profit from the work and labor of others may be subject to the appropriate legal remedies for such illegal, unintended uses.
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