Can You Trust Your Trust Agreement?

I have had it. After 15 years of practicing in the field of wills, trusts and estates, I am furious about the number of poorly prepared trust agreements from the 1980's and 1990's that have come across my desk in my role as attorney for a successor trustee.

Here's the problem. Mom or Dad, or both, probably paid some attorney quite a nice sum of cash to have a trust agreement prepared. They were probably assured that their estate would avoid probate - and that the administration of their estate would be much less complicated.

Sounds great, doesn't it? And it works - if the agreement was prepared correctly, if the right people were named in the right roles and if the client didn't make any mistakes in funding or accidentally "unfunding" their trust before they died.

Now Mom and Dad have passed away, and I'm representing their child as trustee - et voila! A significant asset (or two... or more...) is found to be not in the trust, often causing a probate of those unfunded assets.

What went wrong? Well, it would be fun to place blame on the attorney who prepared the documents - they've probably long since retired or passed away - but in many cases it's not the attorney's fault. Let's figure out why...

If Mom or Dad hired an attorney to prepare certain documents, that attorney's role is probably complete once the documents have been signed and returned to Mom or Dad - unless some agreement between Mom or Dad and the attorney states otherwise. For the attorney to agree to monitor Mom and Dad's estate until they pass away would create an incredible and potentially impossible burden on the attorney -- and knowing most attorneys, it would probably require a steep monthly retainer. So I don't see those types of arrangements very often.

Is it Mom or Dad's fault? Well... yes and no. In some ways it's no different than buying a new lawn mower - you take care of it and keep it in the garage the first few years and eventually it ends up rusting out behind the barn.

In other words, time passes... things change. What may have been important to Mom and Dad when they had the trust created may be just a rusty old idea by the time Mom and Dad pass away. Trust agreements, like old lawn mowers, get neglected. So... before it's too late... can you trust your trust agreement? If you're not sure, maybe it's time to haul it out and take a look.