- FREE Seminars -

Click Here to Sign Up Online!

Call 925-256-0298 to RSVP


Next Seminar:


Tuesday June 25, 2019

2:00pm - 3:30pm


Walnut Creek Library

Oak View Room

1644 N. Broadway

Walnut Creek, CA 94596


"How to get Medi-Cal coverage for your nursing home care... without selling your home or leaving your family without a dime... Surprising ways to pay for your assisted living and long term care costs."

Elder Law Today Newsletter | Vol. 6 | March, 2006


The Revocable Living Trust - Preparing for Incapacity

We receive a lot of questions about the Revocable Living Trust, (RLT) including, “I have a will, so why would I want a trust?” A will provides for the distribution of your assets to your children, etc., but it only goes into effect after you die. The will is then probated through a court proceeding in the Superior Court. The will does not, however, provide protection for you during your lifetime if you become physically or mentally incapacitated. With only a will, in the event of your incapacity, the court may be required to appoint a conservator for you, and the court would then supervise the control of your assets through a conservatorship proceeding. This is a concern for older persons who would like to avoid a conservatorship proceeding, and who would like to maintain control of their assets while they are alive.

Incapacity can result from mental or physical problems resulting from Alzheimer’s or Parkinson’s disease, stroke, heart attack, etc. At times, older persons would like for their children, or other loved ones or friends, to take over their finances, when it becomes too difficult to take care of their finances on their own. Another concern for older persons is that they would like to maintain the ability to protect and preserve their assets for themselves and their families, where possible, when the older person is facing nursing home care. The RLT, along with a durable power of attorney for financial affairs, can be devised to accommodate these issues in the event of incapacity, including providing powers for Medi-Cal qualification and asset transfer rules.

The first step in creating an estate plan, whether it utilizes the Revocable Living Trust or not, is to meet with an attorney who is experienced in this area of the law, and who can explain the process to you. When you create a RLT, you, or you and your spouse, will become the Settlor or maker of the trust. This means that the trust belongs to you and that only you can make changes to your trust. You will also name someone as successor Trustee to act on your behalf in the event of your incapacity. In addition, you can elect to name someone else to act as immediate Trustee, if you would prefer. You will also name the attorney in fact under the financial durable power of attorney, who is usually the same person as the successor trustee under the Trust.

You will also designate beneficiaries of your trust, who are people or organizations who will receive your assets when you pass away. This is also where a trust is extremely useful. For example, you may have three adult children and you may want all of your assets to pass in equal shares to your three children upon your death, and should one of your children die before you do, you may want his share to go to his children. This can be easily accomplished with a Trust. In addition, you may want to provide some level of asset protection for your children, by providing for distribution to them at a certain age, say 25; or, by making “step” distributions to your children so that they would receive, for example, 1/3 of their assets at age 25, half of the remainder at age 30 and the remainder at age 35. For this purpose, assets would remain in trust after your passing, and the trustee would make the required distributions. On the other hand, for instance, you may have an adult daughter with a developmental disability who would not be able to manage her share of the assets upon your death. In that case, you may choose to have her share of the assets continue to be held by the Trust in a “Special Needs Trust” after your death so that the trustee can manage her share for her.

Other Probate & Trust Newsletters

Avoiding Probate in California

A Primer on Probate

Funding Your Revocable Living Trust

Can I Have a Trust for My Pet? Yes!

"My Son In Law is a Big Fat Dummy." Remedy: The Personal Asset Trus

Problems With Typical Revocable Living Trusts and Financial Durable powers of Attorney - And the New 70

Long Term Care Provisions for the Revocable Living Trust and Financial Durable Powers of Attorney for Couples Facing an Diagnosis of Early Dementia

The Revocable Living Trust - Preparing for Incapacity

Copyright © 2015 | WalnutCreekElderLaw.com