Do Not Let These Revocable Living Trust Drafting Mistakes Haunt You

Oct 30, 2020 10:00:00 AM



Halloween is in the air everywhere we look. Even with all the frightening imagery of ghouls, ghosts, and goblins, to estate planning attorneys there are things even more terrifying: legal drafting mistakes! Drafting mistakes can lead to disappointed phone calls from clients, negative online reviews, and worst of all, demand letters from the attorneys of angry children of deceased clients, followed by that dreaded call to your professional liability insurance carrier. This is truly the stuff nightmares are made of.

Fortunately, drafting mistakes can be greatly reduced, if not entirely eliminated, with the right tools and training in the use of those tools. Wealth Docx® is the premier estate planning drafting solution on the market today. Countless hours of careful review and input from thousands of attorneys across the United States have resulted in a legal document drafting suite that can provide you with the most powerful tools available to draft state-of-the-art legal documents to help your clients achieve their family wealth planning goals.

Nevertheless, even the most powerful drafting tools cannot, by themselves, insulate you from the need to master them. That is why WealthCounsel has created a two-day program on November 5 and 6 to help new and experienced attorneys alike learn the ins and outs of drafting revocable living trusts (RLTs) using Wealth Docx. WealthCounsel’s CEO, Henna Shah, JD, LLM; VP of Editorial, Jenni Davenport, JD; and Associate Editor for Trusts & Estate, Sagar Jariwala, JD, LLM, will demonstrate the Wealth Docx RLT drafting software and examine the legal reasoning behind each provision and question asked in the RLT interview.

Trustee Selection

Traditionally, asking a client to choose successor trustees was no more complicated than the client listing the children in the family from oldest to youngest. While this approach may continue to be what many clients prefer, there are far more and perhaps better options than this simplistic and often ill-advised traditional approach. Have you considered any of the following when discussing successor trustee options with your clients?

  • Is it important to have the surviving spouse serve with a co-trustee after the death of the first spouse for either asset protection purposes or to help relieve the burden on the spouse of being the sole trustee?
  • Once the grantor or grantors have died, should there always be more than one trustee serving at any given time? What checks and balances should be in place, if any, for successor trustees?
  • Who, if anyone, should be given the power to remove and replace a negligent or neglectful trustee?  
  • Can the list of successor trustees be altered after the grantor’s death? If so, who has the power to make such alterations or amendments? 
  • Will the trustee be entitled to compensation for their service to the beneficiaries?
  • Has there been sufficient discussion regarding the benefits of naming an institutional or professional trustee? 
  • If having the independence and competence of a professional trustee is attractive to your clients, what criteria should be used for ensuring that a professional trustee meets at least a minimum standard of competency? 

Oversights and mistakes in drafting these provisions can have huge effects on the smooth administration of a trust after a client dies. The Wealth Docx drafting system allows you to quickly and accurately draft such complex but impactful legal provisions within your clients’ estate documents, giving you the ability to create highly customized estate plans for your clients.

Specific Distributions

Traditional families with parents and children from only one marriage have fairly straightforward distribution provisions. However, distributions of property can become complex very quickly with nontraditional families; whether it be distributions to charities or educational institutions, nonfamily members and friends, or relatives that are not direct descendants.  

Drafting such provisions from scratch can be an enormous challenge for new and experienced attorneys alike. There are ample opportunities to make mistakes, such as failing to specify who the taker in default will be, whether or not specific distributions will lapse or will be passed on to the descendants of a beneficiary named to receive a specific distribution, or whether or not the principle of cy pres will apply with regard to specific distributions to particular charities.  

Wealth Docx has laid out a powerful decision tree within the RLT interview that allows you to carefully think through all of the potential issues that could arise when making specific distributions. Helpful educational prompts, warnings, and links to further information on more complex issues to consider are all included in Wealth Docx to ensure that specific distributions end up in the intended hands.

Remainder Distributions

Have you ever had difficulty explaining concepts like per stirpes, by representation, or per capita at each generation to your clients? The difficulty of explaining the different concepts to help clients decide which remainder distribution approach makes sense for their families may lead attorneys to simply recommend the most common approach. However, taking such a choice away from a client (or failing to explain all of the client’s options) can create unnecessary discord among family members when expectations are not met when the time comes for distributing property among beneficiaries.

Wealth Docx not only simplifies the selection and drafting of remainder distribution language, but also helps attorneys explain provisions to clients to help them make informed choices. Embedded directly in the Wealth Docx drafting solution is a colorful and clear slide deck that can be printed off and shared with clients to easily walk them through the differences between the three most popular remainder distribution options. This powerful visual representation of these complex legal concepts will allow your clients to quickly grasp these important concepts and significantly increase their confidence that their estate plan is truly customized for their unique family circumstances.

Invitation to Learn More

The issues discussed above are only a sample of the many complex but important decisions and options available to you and your clients when drafting estate planning documents. The attorneys at WealthCounsel work tirelessly to make sure you have maximum flexibility and control over the documents you draft for your clients. Beyond that, WealthCounsel’s world-class educational content  allows you to unlock the full potential of Wealth Docx. Join us for our two-day RLT drafting workshop to help you better tap into these incredible resources that will help you provide the value that you strive to deliver and your clients deserve.

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