Trusts | Estate Planning Attorney Chesterfield MO 63017 63005

Estate Planning for Unmarried Couples

Chris Cox — Tue, 06 Jan 2026 20:26:01 +0000

Estate Planning for Unmarried Couples

Estate planning is often associated with married couples, but it’s equally important for unmarried partners to consider. Whether you’re in a committed relationship, cohabiting, or engaged, taking proactive steps to protect each other and your shared assets can provide peace of mind and ensure that your wishes are honored.

Understanding the Importance

Unmarried couples face unique challenges when it comes to estate planning, as they may not have the same legal protections and rights as married couples. Without proper planning, your partner may not be entitled to inherit your assets or make critical decisions on your behalf in the event of incapacity or death. Estate planning allows you to address these concerns and tailor a plan that reflects your wishes and safeguards your partner’s interests.

Key Considerations

Wills and Trusts: A will is a foundational document in estate planning that outlines how you want your assets distributed after your death. Without a Will, state intestacy laws will determine the distribution of your assets, which may not align with your wishes or benefit your partner at all. Consider creating a will or trust to possibly designate your partner as a beneficiary and and as the Personal Representative (“Executor”) and Trustee of your estate and Trust.
Joint Ownership: Joint ownership (with rights of survivorship) of assets, such as bank accounts, real estate, and investments, can simplify the transfer of assets to your partner upon your death if that is in line with your wishes. Joint tenancy with rights of survivorship ensures that your share of the property passes directly to your partner, bypassing probate and potential challenges from other heirs. Nevertheless, there are also some important disadvantages to joint ownership between non-married couples that you should discuss with your attorney.
Beneficiary Designations: Review and update beneficiary designations on retirement accounts, life insurance policies, and other financial assets to ensure that your partner is provided for as you wish. Without proper designations, these assets may pass to other family members or beneficiaries according to default provisions.
Healthcare Power of Attorney and Healthcare Directive: In the event of incapacity, healthcare Powers of Attorney will allow whoever you designate (possibly your partner) to make medical decisions on your behalf. The document also outlines your preferences for end-of-life care. These documents ensure that your wishes are respected.
Estate Tax Planning: Unmarried couples may face estate tax implications if their combined assets exceed the applicable exemption amount. Consult with a qualified estate planning attorney to explore tax-saving strategies, such as gifting, trusts, and other planning techniques to minimize tax liabilities and maximize wealth transfer to your partner.

Navigating Legal Challenges

Unlike married couples, unmarried partners may encounter legal challenges related to inheritance rights, property ownership, and parental rights, especially in the absence of formal legal recognition of their relationship. Consulting with an experienced estate planning attorney who understands the nuances of unmarried couple planning can help address these challenges and tailor a comprehensive plan that protects your interests and reflects your intentions.

Conclusion

Estate planning is essential for unmarried couples to safeguard their future and ensure that their wishes are honored. By taking proactive steps to create a personalized estate plan, you can protect your partner, preserve your assets, and navigate legal complexities with confidence. Whether you’re cohabiting, engaged, or in a long-term relationship, estate planning provides a roadmap for securing your future together and building a legacy that reflects your shared values and aspirations.

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What to Do When A Trustee Isn’t Fulfilling Duties

Chris Cox — Tue, 06 Jan 2026 18:51:18 +0000

What to Do When A Trustee Isn’t Fulfilling Duties

If you’re a beneficiary of a Trust or a Will, you may be concerned if you believe the Trustee or Personal Representative isn’t fulfilling their duties. This can be a frustrating and stressful situation, but there are steps you can take to address the issue.

Understanding Your Rights

As a beneficiary, you have certain rights, including the right to:

Receive information: You have the right to receive information about the trust or estate, including financial statements, tax returns, and investment reports.
Inspect documents: You should be able to inspect documents related to the trust or estate, including obtaining copies of the actual Trust or Will.
Receive distributions: You have the right to receive distributions from the trust or estate according to the terms of the Trust or Will.

Signs of Potential Misconduct

There are several signs that may indicate a Trustee or Personal Representative isn’t fulfilling their duties:

Failure to provide information: If the Trustee or Personal Representative refuses to provide you with information about the Trust or Estate, it may be a sign of misconduct.
Mismanagement of assets: If the Trustee or Personal Representative is mismanaging the assets of the Trust or Estate, it could lead to significant financial losses.
Self-dealing: Self-dealing occurs when a Trustee or Personal Representative uses trust assets for their own personal benefit.
Breach of fiduciary duty: A fiduciary duty is a legal obligation to act in the best interests of another person, particularly the beneficiaries of the Trust or Will. If a Trustee or Personal Representative breaches this duty, they may be liable for damages.

Steps to Take

If you suspect misconduct, here are some steps you can take:

Communicate with the Trustee or Personal Representative: The first step is to try to communicate with the Trustee or Personal Representative directly. Clearly express your concerns and ask for specific actions to be taken.
Consult with an Attorney: An experienced Trust and Probate attorney can help you understand your rights and options. They can also advise you on the best course of action to protect your interests.
File a legal action in Court: If you’re unable to resolve the issue through communication or negotiation, you may need to file some type of legal action against the Trustee of Personal Representative in court. This can be a complex process, so it’s important to consult with an attorney.
Consider Mediation: Mediation is a process in which a neutral third party helps the parties involved in a dispute to reach a settlement. Mediation can be a less formal and less expensive alternative to litigation.

Common Legal Remedies

If you can prove that a Trustee or Personal Representative has breached their fiduciary duty, you may be able to seek legal remedies, such as:

Removal of the Trustee or Personal Representative: The court may remove the Trustee or Personal Representative and appoint a new one.
Monetary Damages: You may be able to recover monetary damages for any losses caused by the misconduct.
Accountings: The court may order the Trustee or Personal Representative to provide a detailed accounting of their actions.
Injunctions: The court may issue an injunction to prevent the Trustee or Personal Representative from taking certain actions.

Conclusion

If you believe that a Trustee or Personal Representative is not fulfilling their duties, it’s important to take action. By understanding your rights and taking appropriate steps, you can protect your interests and ensure that the Trust or Estate is administered properly.

Estate planning attorney Christopher Cox is committed to helping clients navigate complex legal issues, including those related to trust and estate administration. If you have concerns about a Trustee or Personal Representative, please call our office to schedule a consultation.

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Debunking Estate Planning Myths 2.0 (Continued)

Chris Cox — Fri, 29 Aug 2025 18:30:05 +0000

Debunking Estate Planning Myths 2.0 (Continued)

This article takes a deeper look at the most common estate planning myths and is a continuation of a previous blog article. If you have not already, please read the first article about 12 common estate planning myths.

Myth 13: Estate Planning is expensive.
There is, of course, a cost for any law firm to draft appropriate documents for you, but it is probably less than most people think. That expense is always worth eliminating the stress, hardship and further expense that would be incurred by your family if you do not have an Estate Plan in place.

Myth 14: A Durable Power of Attorney gives my agent the right to take control of my assets after my passing.
A Durable Power of Attorney (DPOA) is a “must have” document that our office always recommends, but the authority under that document terminates upon your death. A DPOA cannot be used to distribute assets, pay bills or really do anything after your passing.

Myth 15: It takes too much time and effort to retitle your assets into a Revocable Living Trust.
There’s always 2 steps to creating a trust. Step one entails drafting and signing your Trust document, and step two entails funding your trust. E.g., retitling assets (bank accounts, real estate, investments, etc.) into the name of your trust. That sounds overwhelming, but it is usually a very quick and easy process. Most of it can be accomplished over the phone or online. Often, the only actual places where people have to get in their car and go to are their bank and the Dept. of Motor Vehicles. Our office provides you with detailed written instructions on exactly what you need to do with each of your assets.

Myth 16: If I create a Revocable Living Trust, my assets are protected from creditors.
Unfortunately, this is not true. A normal Estate Planning revocable living Trust does not protect your assets from your creditors. If you get sued and get a judgment against you, creditors can seize your assets that are titled in the name of your Trust as you are viewed as the owner of those assets even though they’re titled in the name of your Trust. Normal Estate Planning Trusts are not asset protection Trusts. I always encourage clients to have adequate insurance to cover any possible claims – insurance should be your first line of defense.

Myth 17: If I add a child’s name to my account, that will avoid that asset going through Probate Court when I die.
This is not usually correct. Often, bank accounts with a non-spouse are jointly titled as “tenants-in-common,” and that means when you die, the ownership of your portion of that account still needs to go through Probate Court. It also has some very unintended consequences in that the person the you put on the account with you does not need to share that with any of your other beneficiaries. The account is also subject to that other person’s creditors. Finally, another drawback to doing that is that the other person that you have listed on the account may be able to clean out the entire account while you’re living.

Myth 18: There will be a formal reading of my Will after my passing.
This is something that you see in movies, but never happens in real life. Wills used to be read before copy machines were common and when people were illiterate. The people named in your Will most likely will get a copy of your Will, but they will not be gathered in a room for a reading.

Myth 19: I can just list one of my children as the POD beneficiary on my assets, and they’ll divide it among their siblings.
Unfortunately, money makes people act differently than you’d expect. Legally, if you name only one person as a POD on your asses, that person has absolutely no obligation to divide up those assets to anyone else regardless of what they told you or what you told them. The law is clear in that if you only list one person as a POD beneficiary, that person is entitled the everything in the account. In addition, even if they decide to divide it up voluntarily, there could be gift tax consequences for them in doing so. As a result, this is never an advisable Estate Planning strategy to rely on.

Myth 20: I pre-purchased a funeral plan and cemetery plot so that my family won’t have to worry about paying for that after I pass away.
Like everything in life, there’s often a catch. If you prepurchase a casket, viewing, funeral, etc. with a funeral home, you want to check what other expenses the family commonly needs to spend. Often it doesn’t cover everything. You also want to inquire about what happens if that funeral home goes out of business – it could be that you’re out of luck and get nothing in return, and are not even able to get a refund. Be sure there is some type of clause in the prepaid contract providing that another funeral home will step in and cover everything, or that there’s some type of insurance that would reimburse you for your payment. Regarding repurchasing cemetery plots, realize that there are sometimes substantial expenses in addition to just buying the plot such as the headstone, digging the grave, filling up the grave, etc. Often, this is not included in what you pre-purchased. Talk to the cemetery and look at your contract.

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How To Help Your Adult Child With Money

Chris Cox — Fri, 29 Aug 2025 18:15:43 +0000

How To Help Your Adult Child With Money

PROVIDING FOR ADULT CHILDREN WHO CAN’T HANDLE MONEY, ARE SPENDTHRIFTS, HAVE ADDICTION ISSUES, POOR JUDGMENT, HAVE BEEN IN TROUBLE WITH THE LAW OR HAVE JUDGMENTS AGAINST THEM.

We all love our children and would do anything for them, but once they become adults and are out on their own, some go down the wrong patch, and in a direction we do not want them headed. Our office often get questions from clients regarding what to do with an adult child who has money problems, has an addiction, has been in trouble with the law, or has judgments against them. Clients are often concerned that when they die, and put a bundle of money in their hands, it will be wasted or seized by the child’s creditors. Thankfully, with a revocable living trust, there are numerous options to resolve these concerns.

With a Trust, you have the option of not putting an inheritance directly in the hands of a beneficiary all at once. You can dictate when they receive that inheritance, if at all. E.g., you can parse it out to them over a number of years by designating ages when they are to receive it. For example, you can say they are to receive 1/3 at age 30, 1/3 at age 35 and 1/3 at age 40 (or any ages you chose). The hope is that once they mature, they will have recovered from their poor decisions. Nevertheless, sometimes this is not enough, and more drastic planning is required.

In such situation, a client can set up their trust to keep a child’s inheritance in a lifetime trust and thus never put it into their hands or under their control. Their share stays in trust and is controlled by a Trustee (either another relative or a financial institution) where the child can go to get money to pay for particular expenses. As a result, they have use of this money, but no control over it. All expenditures would need to be approved to by the independent Trustee. Setting things up this way would also protect it from creditors as the bulk of the Trust is never put into the child’s hands. While this is set up to protect the child, just be aware most adult children don’t such restrictions on their inheritance, particularly if their siblings received their money outright. It may cause resentment toward their siblings, but sometimes there is no other choice.

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Risks of Joint Trustees

Chris Cox — Wed, 10 Jan 2024 22:05:10 +0000

Risks of Joint Ownership

While it may initially be appealing to name two or three of your children or other relatives as joint co-Trustees in your Trust, co-Executors in your Will, or joint co-Agents in your Powers of Attorney, there are potential problems in doing so. Our office usually recommends that instead of appointing joint co-Trustees, co-Executors or co-Agents, you appoint one main backup person to act for you, and then appoint additional backups to be named in order of succession so that there is only one person acting at a time. You are legally allowed to appoint two or more individuals jointly to act in these roles, and we will set it up that way if that is what you wish, but must first advise you of some the problems that may arise in doing so. If you appoint two or more people to act jointly, you have the option of either saying that they have to agree on every decision or that each one can act alone. Either of those create potential problems:

If you mandate that they have to agree on every decision and action, that can be very cumbersome as it requires them to both sign all checks and documents and to agree on every little detail of the management and distribution of your assets. I have seen people who get along very well be unable to agree on something as simple as what bank to use to open a new account. If they don’t all agree, nothing gets done and things can grind to an immediate halt thus frustrating your wishes of an easy and speedy distribution.
If you set up the joint appointment to say that either co-Trustee, co-Executor or co-Agent can act on their own, you’re potentially setting up a situation where each acts on their own, against the wishes of the other, and they each go two separate directions. For example, if the Trustee’s disagree about what bank to open a new Trust account at, each Trustee has the authority to open a Trust account at a bank of their choosing – – each going to a different bank. If the Trustee’s can each act
on their own without the other’s consent, such a situation can create disastrous consequences that have the potential of bringing the administration of your affairs to another halt.

Both of the above situations can have the same result, your matter is pushed into Probate Court to solve the problems caused by a joint appointment. Having more than one Trustee, Executor or Agent serving at the same time usually slows down the administration process and can stir rancor between children and/or relatives, and, ultimately cause a legal battle. As a parent, the knee jerk reaction is to have all of your children involved in the handling of your Trust, but you’re setting them up for sibling rivalry and conflict by doing so. As a result, our office recommends only appointing one Trustee, Executor or Agent at a time.

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The Estate Planning Process

Chris Cox — Tue, 20 Jun 2023 20:39:27 +0000

The Estate Planning Process

Many people think the estate planning process is time consuming, complicated and expensive. An experienced estate planning attorney make estate planning a relatively easy process and can be quite affordable for estates that are not overly complicated. The best way to learn about the process is to utilize a free initial consultation that provides you an opportunity to meet with attorney Chris Cox and ask specific questions for your unique situation. We offer three convenient options for this free meeting:

In-person at our Chesterfield, Missouri location near I-64 and Mason
Via phone call
Via Zoom video call

During the initial consultation, we make every effort to learn about you, your goals and answer your questions specifically as well offer recommendations and layout a general roadmap for the estate planning process. Most clients find this free consultation incredibly valuable and far exceeds their expectations for a free consultation.

After the free initial consultation, if you wish to proceed, we will provide you with a questionnaire to complete, and schedule a follow-up meeting (either in-person or via Zoom) to gather information and discuss how you’d like to set up your documents. The questionnaire is designed to gather basic, straight-forward information as well as generate discussion with your loved ones about your wishes in terms of assets, finances, healthcare, guardianship and other related topics. Many clients find the questionnaire helpful in discussing topics they many never have considered.

At the follow-up meeting, we go through each document in detail and discuss all possible options. This meeting uncovers the nuanced details needed to create a customized and comprehensive estate plan to meet your specific needs. We never use template forms or documents for your estate plan. Approximately 7-10 days after our office receives all the necessary information from you, we send you a complete draft of your documents for review. Along with these documents, you’ll also receive detailed summaries of the documents that make then easier to read and digest.

After you have reviewed the documents, you can call, email or meet in-person with attorney Chris Cox to discuss questions or changes you may have. Once the documents are in final form, we schedule a signing appointment where you come into the office to sign the documents before a notary public and witnesses. After that appointment, you’ll receive your original signed documents for safekeeping along with an extra copy of everything. We’ll also review general instructions regarding the documents. If a Trust is one of the estate planning documents our office drafted for you, we’ll discuss your next step of moving assets into that new Trust. We supply you with very detailed written “how-to” instructions, and review those instructions with you so we can answer any questions you may have. This is movement of assets into the Trust is called “funding your trust”. This funding process usually does not take much time, and most likely will only require you to go to your bank and the Missouri Department of Motor Vehicles to adjust your car title – everything else can usually be accomplished over the phone, via mail or online.

Overall, our office makes the estate planning process very easy and smooth. We look forwarding to working with you to meet your Estate Planning needs.

Chesterfield estate planning attorney Chris Cox helps people throughout the St. Louis area with estate planning, trust administration, probate and gift giving strategies to maximize the transfer of wealth to your family and friends. To learn how the law applies to your specific circumstances, schedule your FREE consultation with an experienced estate planning attorney online or call our office at 314-727-0163.

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10 Things To Do After Someone Dies

Chris Cox — Tue, 20 Jun 2023 20:25:16 +0000

10 Things To Do After Someone Dies

When a loved one dies, the family is faced with a sometimes overwhelming responsibility of managing that person’s affairs. There are many things to attend to, and that often adds more stress to an already difficult time. It is important to ask for help and delegate to other family members. While not all-inclusive, here are the top 10 things to do after someone dies:

Get A Notebook
It might sound unconventional, but before doing anything you should get a notebook. Record the date and time of every phone conversation, email or postal communication. If you do something, write it down. Be sure to include the full name of the person you speak with, his/her title and the phone number extension. This is a stressful time, often charged with various emotions, and will become quite hectic at times. If you record everything you do, you’ll be able to reference the people involved with a given matter as well as the progress of the many different aspects to managing the affairs of the decedent.
Notify Close Family and Friends
Don’t forget to ask capable family members for help. You don’t need to do this alone.
Get Several copies of the Death Certificate
You will need an official Death Certificate for a variety of legal matters. This is a document that will be issued by the State, but usually, the hospital, nursing home or funeral director will take care of this for you. You may need a Death Certificate for each separate asset that your Love One owned (e.g., one to give to the bank, investment broker, life insurance company, etc.), so be sure to order as many as you may need.
Look for your Love One’s Estate Planning Documents
Be sure to look for any instructions your loved one may have left regarding his/her final arrangements. This can be a Will, Trust, Durable Power of Attorney, Health Care Power of Attorney, Health Care Directive or “Letter of Instruction”. Often these documents can be found wherever your loved one keeps other important papers (safe deposit box, home lock box, file cabinet, etc.)
Make Funeral and Service Arrangements
Again, this is an area other family members can assist in doing. Be sure to see if there are any prepaid arrangements.
Arrange for the Care Of Your Loved One’s Dependents and Pets (If Any)
In addition to arrangements for your loved one’s dependents, an area often overlooked is the arrangement of care for any of your loved one’s pets.
Secure Your Loved One’s Home & Valuable Possessions
Unfortunately criminals target homes of people who have passed. It is important to notify the police department of the vacant home as well as request an extra patrol during the funeral. You may want to consider removing any valuables from a vacant home or installing a security system.
Call Your Loved One’s Insurance Company
You will need to call your loved one’s insurance company and notify them of his/her passing. You also want to ask if any changes need to be made to your loved one’s automobile insurance, homeowners’ insurance, renters’ insurance, disability insurance, umbrella insurance, etc. Since the owner has passed, a different type of policy or rider may be needed. Be sure not to leave real estate or vehicles uninsured.
Make Arrangements for Mail
You will need to make arrangements for receiving your loved one’s mail or put in a forwarding address notice with the post office so the mail comes to you.
Schedule A Meeting with An Estate Planning Attorney
You will want to meet with an experienced estate planning attorney to learn the many other steps you will need to take in managing your loved one’s estate and affairs. Call our office to learn the next steps and ensure nothing is left to chance.

Estate planning and probate attorney Christopher P. Cox has more than 30 years of experience and has helped countless numbers of people with all aspects of estate planning, probate and trust administration. A free consultation is available and provides a great opportunity to learn how the law applies to your specific situation.

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10 Reasons Why Joint Ownership May Not Be a Wise Choice.

Chris Cox — Tue, 20 Jun 2023 18:40:05 +0000

10 Reasons Why Joint Ownership May Not Be a Wise Choice.

I frequently run into new clients who have titled bank accounts, stocks, brokerage accounts, certificates of deposit (CDs), and even real estate, jointly with their adult children as an estate planning technique. They reason that if something happens to them, that asset will automatically go to their children. I almost always counsel against this as there are numerous pitfalls in doing so. Here are 10 reasons why joint ownership may not be a wise choice.

Jointly titling an asset or account is NOT a substitute for a Trust and Will and should never be treated that way. Only a Trust or Will can adequately ensure that a person’s assets will pass to their intended beneficiaries. This is something that should be discussed in detail with an experienced estate planning attorney. In addition to drafting the necessary estate planning documents for you, our office will provide you with detailed instructions on the titling of your accounts and assets and even the structuring of beneficiaries.

Establishing a joint account with your adult children or other relatives is filled with risks, pitfalls and drawbacks, that should usually be avoided. Such problems include the following:

Choosing the wrong type of joint ownership.
Assets can be titled jointly “with rights of survivorship” or jointly as “tenants-in-common.” They are both still referred to as jointly owned, but they are vastly different. Titling an account as “joint tenants with rights of survivorship” means that if one person passes away, the other becomes the sole owner. Titling an account as “joint tenants-in-common” means that you each own an undivided interest in that account, and if one co-owner passes away, the other does not automatically become the owner of the account. If the account is held as tenants-in-common, the deceased owner’s share will have to pass through Probate Court pursuant to their Will. New clients are often not aware of these differences and improperly set up their joint account.
If the co-owner of the account dies before you or at the same time as you, the account may end up in Probate Court.
If both co-owners of the account pass away, the account may go through Probate Court.
The co-owner of the account becomes the sole owner of the account and does not have to share that account upon the client’s passing.
I often have people tell me that they have several children, but have only listed one of the children listed as a co-owner of the account because they “trust” that child to distribute the proceeds to the others. WRONG. Any attorney will tell that surviving child that the money is 100% theirs and that they have absolutely no obligation to share that money with any of his or her siblings. If a parent only puts one child’s name on the account, the law interprets that as the parent’s intention to give that account to just that one child. In fact, if they do share that money with their siblings, there could even be adverse gift tax consequences in doing so.
The jointly owned account is subject to the creditors of both co-owners.
If a client puts their adult child on their account and that child is ever sued by creditors, that entire account is subject to seizure for that debt. If the child gets a judgment against them due to an automobile accident, again, that entire account can be seized to satisfy that judgment.
Loss of the asset in the event of a joint owner’s bankruptcy.
Likewise, since the adult child is considered a co-owner of the asset, if that child files bankruptcy, the account may be lost to the Bankruptcy Court and the creditors.
A joint owner can withdraw that entire account and use it for themselves if they choose.
A joint account owner can “go rouge” and withdraw the entire account without the other owner’s permission. I’ve seen this happen in unfortunate situations where an adult child has become involved with substance abuse, addiction issues or criminal elements.
Problems in selling the asset.
If the client later decides to sell or dispose of the jointly titled property, the written consent of all of the other owners (and even their spouses in the event of real estate) may be required.
There’s no obligation of the joint tenant to use that account to care for the parent if they become incapacitated.
I often hear that a potential client puts his or her adult children on their account so that they can use that account to care for them and pay their bills if they become incapacitated. Unfortunately, there is absolutely no obligation for that child to do so. They can decide that they’re going to use that money only for themselves.
Loss of the asset if a co-owner gets divorced.
Remember, from the minute the co-owner is put on the account or asset as a joint owner, they are a full-fledged owner of that asset. So, if an adult child is put on that account, and that child gets divorced, that account may be viewed as owned by that child, thus giving their spouse claim to that account in a divorce.
Possible gift tax liability.
Adding a child’s name to your account may be construed as a gift to that child, thus triggering the necessity of filing a gift tax return at the end of the year and possibility having adverse gift tax consequences.

Joint ownership is not a substitute for proper Estate Planning. Our office has seen disasters occur because of such jointly owned accounts. This is a topic that should be discussed in detail with an experienced Estate Planning Attorney. There is no substitute for such professional advice.

Estate planning attorney Christopher P. Cox has more than 35 years of experience and has helped countless numbers of people with all aspects of estate planning, probate and trust administration. A free consultation is available and provides a great opportunity to learn how the law applies to your specific situation.

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Role of Fiduciaries in Your Estate Plan

Chris Cox — Tue, 20 Jun 2023 18:27:03 +0000

Role of Fiduciaries in Your Estate Plan

Creating a comprehensive estate plan requires careful thought and planning. Numerous decisions must be made during the creation of that estate plan. Most people assume that decisions regarding the distribution of your assets are the most important, but the individuals who you appoint to carry out your wishes (referred to as fiduciaries) often make or break the success of your plan. For that reason, it is imperative that you understand the role of fiduciaries in your estate plan so you can select the appropriate person to serve in each role. You are usually picking one main person to act and then several backups in case the previous people are unable to serve. You also have the options of naming professional fiduciaries such as banks or trust companies to serve in some of those capacities.

THE PERSONAL REPRESENTATIVE OF YOUR WILL
A Will includes the appointment of a Personal Representative (a/k/a Executor) who will be responsible for carrying out the directives in your Will, making all decisions for your estate, retaining an attorney, opening a probate estate, filing all necessary probate paperwork, preparing detailed inventories of estate assets, managing, safeguarding and investing those assets, handling creditor claims, defending Will challenges, paying taxes, closing out the estate and distributing the estate assets. The probate process usually takes between 8-18 months to get resolved, and the Personal Representative, along with the assistance of their attorney, handles all aspects of that administration.

Acting as a Personal Representative is a role filled with financial and legal responsibilities. Our office suggests appointing individuals who are good at managing money, organizing accounts and assets, following directions, and dealing with attorneys, accountants, bankers and financial planners. It also requires someone who can be level-headed in dealing with all of the questions and prodding from the beneficiaries who are anxiously awaiting receipt of their inheritance. You do not want to appoint someone who has difficulty balancing their own checkbook, paying their bills or managing their own assets. Usually, the person appointed is a close family relative or friend.

THE TRUSTEE OF YOUR TRUST
Trusts have become a much more common addition to even basic estate plans in recent years. Trusts require you to appoint a Trustee and usually successor Trustees (e.g., backup trustees) who will take over the management of your trust assets if you become incapacitated or pass away. The duties are very similar to the duties set forth above for a Personal Representative, but those duties are conducted without court supervision. Nevertheless, there are still numerous legal requirements that must be met in administering and distributing a Trust. Your Trustee will handle all of those financial matters with the assistance of an attorney. Like a Personal Representative, a Trustee must keep very precise, accurate and detailed accounting records. The same guidelines set forth above for choosing a Personal Representative should be used when picking a Trustee.

THE AGENT IN YOUR GENERAL DURABLE POWER OF ATTORNEY
The Agent you appoint under your General Durable Power of Attorney is given legal authority to act for you and on your behalf on all legal matters. The Agent you appoint has the authority to handle any assets and accounts in your individual name, write checks on those accounts, manage those assets, speak to others and make decisions on your behalf regarding your health insurance, Medicare, your retirement plan, your employment benefits, etc. They can also make legal decisions regarding where you’re going to live if you’re incapacitated, and can sign documents in your name and on your behalf. Again, the same criteria and concerns as set forth above apply to the selection of your agent in this document. Often, people appoint the same person as their Personal Representative, Trustee and as their Agent under their General Durable Power of Attorney.

THE AGENT IN YOUR DURABLE POWER OF ATTORNEY FOR HEATLH CARE AND HEALTH CARE DIRECTIVE
The Agent you appoint in this document can only act when you’re unable to communicate and make your own health care decisions. When that time comes, your Agent will step in and make legal decision on your behalf about what medical treatment you will receive or not receive. They can give authorization for surgery, medication, and all treatment, including making end-of-life decisions. The job of this Agent is not filled with financial responsibilities like the others listed above, and for that reason, people sometimes pick someone different to act in this role. Clients sometimes figure that they are appointing person A as their Trustee, Personal Representative and Agent under their General Durable Power of Attorney as that person is a financial whiz, but maybe that’s not the person they want making medical decisions for them. Nevertheless, you do not have to appoint someone different – it can be the same person. Whoever you appoint should be someone that agrees with your view of medical treatment, and who can handle the pressure of making life and death decisions on your behalf. E.g., if you think such a decision would be too stressful or overwhelming for a particular person to make, you probably don’t want to appoint that person.

THE GUARDIAN OF YOUR MINOR CHILDREN
If you have children under the age of 18, you have the ability to make a recommendation in your Will as to who will act as their Guardian should something happen to both parents. The Guardian is the person who will step in your shoes to raise and care for your children after their parents’ incapacity or passing. This is sometimes an agonizing decision as to who will be appropriate to act in that role. It is usually a close relative or family friend who is willing to take on such role. Factors such as the potential Guardian’s age, relationship with the children, their location, their morals and beliefs, their religion, their current house and living arrangements, and their lifestyle, is often considered when making such a decision.

SUMMARY
Understanding the complexity of the various fiduciary roles in your estate plan, as well as the influence that they can have on the success of your plan, should assist you in deciding on the appropriate person to appoint in each particular role. These positions will be discussed in detail by our office as we walk through each document. We take the time to answer any questions you may have in order to ensure you are comfortable in appointing the proper person in each of these documents.

Estate planning attorney Christopher P. Cox has more than 30 years of experience and has helped countless numbers of people with all aspects of estate planning, probate and trust administration. A free consultation is available and provides a great opportunity to learn how the law applies to your specific situation.

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Should Married People Have Joint or Separate Trusts?

Chris Cox — Fri, 16 Jun 2023 16:10:23 +0000

Joint or Separate Trusts?

You’re married and you’ve made the smart decision to draft a Trust for you and your family, but do you and your spouse create one joint Trust or instead each draft your own separate Trusts? There’s no one-size-fits-all answer to that question as it is dependent on your particular situation. There are several factors in Missouri that weigh into such a decision:

Do you each have the same beneficiaries?
While many spouses have the same beneficiaries and agree on how their assets should be distributed after their passing, sometimes that’s not the case. If one spouse has children from a previous marriage, if there is a Prenuptial Agreement involved, a family business, premarital property, or one spouse just wants their assets to be distributed to different people than the other spouse, two separate Trusts may be the best and most secure way to accomplish this and ensure that each your beneficiaries are provided for. If you draft a joint Trust, the surviving spouse has the ability to change the beneficiaries after the first spouse passes, but beneficiaries on an individual Trust cannot be changed after death.
Does one of you have children from a previous relationship?
If one of you has children from a previous relationship and you want to guarantee that those children inherit a percentage of your assets, an individual Trust may be the best way to do so. As discussed in the previous paragraph, if you have a joint Trust and you die first, the surviving spouse can change the beneficiaries and eliminate any gift to those children. Beneficiaries on an individual Trust cannot be changed after death.
Are most of your assets titled jointly or separately?
If most or all of your assets are jointly titled, a joint Trust may be a smooth transition for you. On the other hand, if you and your spouse keep your assets separate (e.g., separate bank accounts, investments, etc.), you may want to draft separate Trusts to continue to protect those assets.
How important to you is the ease of funding and administration of your Trust?
A joint Trust may be easier to administer during your joint lifetimes as you and your spouse handle it just like you would a joint account. All of your assets are rolled into one joint Trust and either of you can sign checks and make decisions on your accounts. Separate Trusts are a bit more cumbersome as you would each have accounts titled in your own Trust that the other would not have access to. Often, with separate Trusts, current joint accounts have to be split up and retitled 50% into each spouse’s separate Trust.
Do you want to give your spouse the ability to amend the trust and possibly change beneficiaries after you die?
With a Joint Trust, in most circumstances, the surviving spouse can amend the Trust and change beneficiaries after the first spouse dies. With an individual Trust, your spouse cannot change the Trust after your death. Each of these scenarios may be positive or negative depending on your particular situation.
Is protection from creditors important to you?
There are situations where Joint or Individual Trusts may both be advantageous in protecting assets from creditors. If you hold property jointly (e.g., in a joint Trust), that asset is given special protection, and it cannot be seized by a creditor who has a judgment against only one of the spouses. But, if the spouse who has the judgment against him or her is the surviving spouse, all of those assets may be subject to seizure at that time. If you create a separate Trust, during your life, those Trust assets are viewed as still being owned by you and can be seized by any creditors who obtain a judgment against you, but cannot be seized by creditors of your spouse (that protection can be made to continue even after your passing).
Do you have a prenuptial agreement or premarital property that you’d like to protect in the event of a divorce?
Separate Trusts may keep that property separated in the event of a divorce. Otherwise, if you create a joint Trust and retitle your separate premarital property into that joint Trust, there is an argument to be made by the other spouse in a divorce that such separate property was converted into marital property and is now equally owned by both spouses and subject to division.
Attorney Fees.
This should not be the overriding factor in your decision, but please be aware that drafting two separate Trusts will be a bit more expensive than drafting a single Joint Trust.
Status of relationship/volatility of your marriage/protection of your assets.
Separate Trusts may protect your assets if your marriage is somewhat rocky, questionable, or in doubt, since the other spouse cannot access or change your Trust or the assets owned by the Trust.

All things being equal, and if there are no overwhelming circumstances that negate using a joint Trust, our office tends to steer clients toward a joint Trust as they are generally less cumbersome and easier to maintain than separate Trusts. On the other hand, if some of the above factors point toward separate individual Trusts being of benefit, our office will discuss your circumstances and explain the pros and cons of each so that you can make the best choice for you and your family.

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