Tales of Caution: Don’t Wait To Update Trust

Hi, there, everybody, this is Bridget Mackay, I’m an attorney in estate planning, trust administration, probate, and my office is in Petaluma and welcome to my video blog. This month, the month of October, I’m going to be addressing my Tales of Caution. Today, as we approach Halloween, scary stories is what it’s going to be about in these next video blogs. Today, we’re going to talk about ‘Slow Sally’ is what I’m going to call her. The moral of this one is if you’ve decided to go through with creating a trust or changing your existing trust, do not hesitate. And here’s why: I have a client, Sally, who came to me desiring to change or amend her existing self-drafted trust. She had no children, her husband had been deceased, she had not remarried, and her closest relatives were her siblings that lived in Canada. In our first appointment, we discussed totally restating the trust, which needed to be done ’cause she wrote it herself and she was not an attorney.’

We’re going to clean it up, put the people in place she wanted to put in place, get the distributions out that she had wanted. When she had drafted this trust her husband was still alive, so there were some relatives of his that she had no contact with since he had died. We were generally just going to do a new trust for her. She also didn’t have some of the support documents that are needed, that go with a trust. Like health care directive and a power of attorney. So we agreed to get it done, I would send her a draft, and I did that within a few weeks. Fast forward, Sally was almost completely unresponsive for months, despite our efforts, at one point, monthly, and at another point every two weeks to follow up with her and get all the documents signed. Finally, after 9 months of prodding her to complete her process, we did actually hear from someone. But unfortunately, it was not Sally. It was her brother who resided in Canada, but was here locally because she had suffered a serious stroke and was in the hospital. In a panic, he called our office and asked me, “Did she have a health care directive, did she name someone who could make health decisions for her? She can’t make her health decisions right now, and we need to make some decisions about her life support.”

And although Sally and I discussed these topics and we discussed which agent she would like to put in place she had never signed the documents that we had prepared for her, so the only answer to her brother I could give was ‘No’. Fast forward a little more, Sally survived. She survived her stroke, she is now currently residing in a skilled nursing facility today. And because she didn’t complete her restated trust or produce any of the support documents like we had talked about and we had done for her, her brother had to petition the court in order to be her conservator so that he could, from Canada, pay her bills, manage her finances, and make any health care decisions on her behalf. Her boyfriend, of 10 years, that she had was completely divested of any decision making power for her.

So the moral of the story is you don’t want to end up like Sally, and as soon as you have decided that this is something you need to do, and put these documents in place, do it and don’t hesitate, and contact a qualified estate planning attorney to help you with them.