All living trusts, at a minimum, have one common denominator: avoiding probate. Beyond that, living trusts are not created equal. Let us discuss some of the estate planning features that a well drafted living trust often contains.

A well drafted living trust administers a person’s assets during incapacity (prior to death) and at death, without any court supervision (e.g., conservatorships and probate), for the benefit of the settlor who created the trust and his or her loved ones. Flexibility to deal with unforeseen events can be beneficial.

First, a trust should provide for the care of the settlor and the settlor’s loved ones if the settlor is incapacitated.

Does the trust provide authority and instructions for the settlor’s personal care in the event of the settlor’s incapacity? A trust, as relevant, may say whether the successor trustee pays for in home care services to allow the settlor to remain at home as long as possible; whether the trustee allows an adult child to move in (rent free) to care for the settlor; and whether the trustee pays to relocate the settlor to live with family or at an assisted living facility.

Does the trust contain authority and instructions for the care of the settlor’s dependents if the settlor is incapacitated? A trust, as relevant, may say whether the trustee pays for all or some of the living expenses of the settlor’s spouse; whether the trustee continues to support an adult child; and whether the trustee continues to care for the settlor’s pets.

Second, a trust should provide a well thought out disposition of the settlor’s trust estate at the settlor’s death.

Does the trust adequately address the varied needs and life circumstances of its beneficiaries? A well drafted trust often provides discretion to the trustee to administer the trust based on future conditions as they exist at the time of administration.

Does the trust provide the trustee with express instructions or with discretion to use their own judgment to administer the inheritance of a beneficiary who is a minor; to administer the inheritance of a beneficiary who receives needs based government benefits; to administer the inheritance of a beneficiary who has serious creditor problems; or to administer the inheritance of a beneficiary who cannot manage their assets.

A trust, as relevant, may say whether the inheritances of such beneficiaries are subject to further (ongoing) trust management over part or all of their lifetime. A trust may also allow the trustee to administer a beneficiary’s inheritance to purchase services and/or assets for the health, education, maintenance and support of a beneficiary and without distribution cash to the beneficiary.

Does the trust provide for the proper contingency planning in the event that a named beneficiary does not survive? A trust should name or describe alternative beneficiaries in the event that a beneficiary is not alive to inherit and provide whether the alternative beneficiary receives their inheritance outright or in further trust.

Does the trust allow the appointment of an alternative successor trustee in the event that all persons nominated in the trust fail to serve as trustee. A trust can provide a mechanism to appoint an alternative successor trustee without a court petition. That is, the trust may allow the beneficiaries to appoint a trustee or allow a person named as a power holder to appoint a trustee.

Does the trust include, as relevant, properly worded disinheritance and no-contest clauses? A disinheritance clause is particularly relevant when the settlor is not gifting anything to an heir. Consider a parent who is excluding one or more of their children as beneficiaries. Consider a parent who is making an unequal distribution on their assets amongst their children. Is there a no-contest clause to discourage the less favored children from contesting the unequal distribution of the estate.

The foregoing illustrates how a well drafted living trust may avoid some unforeseen and unintended pitfalls. This is not legal advice. Consult an attorney. Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at and 707-263-3235.

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”