These actions fail to recognize that trustmakers have been well advised during their plan design discussions to avoid piecemeal planning. Asset types and values change over time, and piecemeal planning must therefore be redone very frequently to avoid unfair division of an estate among desired beneficiaries as time passes. After considering these issues, most people choose to divide their estate among beneficiaries by fractional or percentage shares, except for rare occasions where one beneficiary is to receive a specific item as part of their share of the total estate.

​

Children who are chosen by aging parents to act on behalf of parents in the event of disability and after death sometimes believe they will be unable to access bank or investment accounts quickly and without any hassle. They may also assume that the primary goal of the estate plan is simply to avoid the expense and delay of probate court involvement.

​

Effects of the Mistakes

​

Consequently, these agents or successor trustees substitute their own wishes for the parent's wishes in the parent's planning documents. Doing so directly interferes with the parent's disposition plan and violates the fiduciary duties owed to the parent by anyone acting as the parent's trustee or agent.​

​

An important goal for most people is to retain what we refer to as "The Dignity of Control" so long as they are able. A corollary of that goal is to resume control after any non-permanent period of temporary disability. The estate plan of a parent supports that goal, and therefore should never be altered or ignored by an agent or successor trustee.

​

Know and Comply with the Trustmaker's Plan

​

The portfolio that contains the estate planning documents we provide for clients contains a couple of sections that help clarify the client's intended disposition plan. These sections supplement the full written trust agreement that many clients, and even many normal lawyers who are not familiar with sophisticated estate planning techniques, may not easily understand.

​

The first important section is the OVERVIEW tab. Behind this section you'll find a one-page diagram titled "Your Plan Design." This diagram provides a concise but helpful explanation of the trustmaker's overall plan.

​

The second tab that is critically important is FUNDING INSTRUCTIONS. The Funding Instructions contain the following:

​

• A list of known assets as of a specified date, with estimated value.

​

• Instructions regarding how each asset should be titled.

​

• For assets passing by beneficiary designation, specific instructions on how the beneficiary and any contingent beneficiary should be named and/or worded

​

Any change to how an asset should be titled, or how the beneficiary should be worded will result in a change of the trustmaker's plan.

​

Again, agents or successor or substitute trustees may not substitute their own wishes for the trustmaker's wishes in the trustmaker's planning documents. That action is a direct interference with the trustmaker's disposition plan and a violation of fiduciary duties owed to the trustmaker by anyone acting as the trustmaker's trustee or agent.

​

Many people choose a plan in which beneficiaries inherit through beneficiary controlled asset protection trusts. It is also true that these plans often allow assets to pass only to descendants of beneficiaries, and not to any spouse of a beneficiary. The matter of how the asset must be titled is extremely important. The trust agreement, not operation of law, such as occurs under joint tenancy, or by contract, is intended to control asset distribution. If assets are titled in joint tenancy or pass by a beneficiary designation inconsistent with the trust agreement, the distribution may be governed by operation of law or contract rather than the trust terms. This can defeat the intended plan.

​

A Final Caution

​

We strongly suggest that agents and successor trustees not rely upon advice given by bank employees or even financial advisors. Such advice is usually wrong because it is offered by someone nearly always unfamiliar with the trustmaker's plan design.

​

We recommend any person acting for a client of ours, as an agent under a financial power of attorney, or as a successor trustee or substitute trustee, call us for a consultation. 

​