Why is my trust so long?
As an estate planning attorney who provides comprehensive, solution-oriented planning documents to clients, I get this question almost every week. I have to chuckle, knowing that in the olden days attorneys did get paid per word of each document they created. But not anymore. Most estate planning attorneys work on a flat-fee basis.
A revocable living trust (a trust that can be amended or revoked by the trustmaker) is a “book of answers.” If the trustmaker loses capacity or dies, the trust becomes irrevocable. That means we are pretty much stuck with whatever is on the page. And if we have a question or situation that the trust doesn’t “answer,” then we end up spending a lot of time and money in court.
I have a simple estate. Can’t my trust be simple?
In order to protect you and your family, your estate planning documents must anticipate and provide for circumstances that may happen in the future. And since estate planning attorneys don’t have crystal balls to know what the future holds, we need to add lots of chapters to our book of answers.
One situation that adds several pages to your trust is the need to plan for government benefits. Take for example parents who leave their property to their son in a trust. The son is healthy when he inherits money, but later is seriously injured in a traffic accident and now has long-term care needs. The son may qualify for government assistance, but must first use his inheritance to pay his medical bills… unless your trust is written to plan for this scenario! Trust language can automatically convert the benefits into a format that will not disqualify the child from receiving Medicaid.
And this is just one example. Each trust needs to have many chapters because there are many potential scenarios. Life isn’t simple. Trusts shouldn’t be either.
Can’t attorneys write in plain English?
This is another one of my favorite questions. The answer is yes. But we shouldn’t.
We lawyers may sound like we come from another planet, but some words have precise legal meaning. Words cannot be changed just to sound better because it may completely change the legal meaning of the sentence. There has been very expensive litigation here in Arizona and elsewhere over the placement of a comma, because the comma changed how the sentence was legally interpreted.
Trusts communicate to other attorneys, probate courts, the Internal Revenue Service and in non-probate courts in a language they are familiar with. This legal language can be counted on to be consistently interpreted now and in the future.
I’m still surprised when clients come to our office and proudly claim their family is protected because they created a trust. They proceed to show us a 3 or 4 page trust, a document that doesn’t answer many questions. I sometimes use the example that credit card agreements are usually 3 or 4 pages long in very small type. Shouldn’t our trust, a document that plans for the Trustmaker’s incapacity, asset protection, asset distribution, and unknown circumstances be even more comprehensive?
The joint trusts I draft are approximately 100 pages. I prepare my clients for this shock and awe. But I don’t apologize for it. And I don’t charge by the word.
