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I have some legal questions regarding the terms of setting…

I have some legal...

I have some legal questions regarding the terms of setting up a living trust with my husband

Lawyer's Assistant: Since estate law varies from place to place, can you tell me what state this is in?

We currently live in texas and plan to set out trust here however, we plan to retire in Florida

Lawyer's Assistant: Has anything been filed or reported?

No

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I have my questions typed already if you want me to copy them on this message

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Answered in 1 minute by:
12/1/2016
Ely
Ely, Counselor at Law
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Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Sure. What can I answer for you, please? Currently, all I have is "I have some legal questions regarding the terms of setting up a living trust with my husband."

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

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Customer reply replied 1 year ago
My husband and I are married for 24 years (second marriage for both of us and each has a child from previous marriages)2.My husband and my son are not in the best relationship and therefore my husband does not want me to split all our assets equally to our children after my death.3.We are in the process of setting a living trust with as both us as trustees4.The following questions I havea.The trust should be revocable while we both alive with the equal access?b.Will this living trust be a subject of 50/50 split if a divorce occurs? Currently we live in Texas, plan to retire in Florida.c.If my husband dies first what would be better for me to split the asset with his daughter 50/50 right after death or continue having a trust with monthly/quarterly distribution.
Customer reply replied 1 year ago
Can you answer by message please?
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Attorney2
Attorney2, Attorney
Category: Legal
Satisfied Customers: 8,662
Experience: 30 Years In General Practice,
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I am a different Attorney and it will be my pleasure to assist you. The beauty of a trust is that it is not required to go through the probate process. There are many different types of trusts that would fit your situation. Irrevocable Trusts are the best vehicles as they avoid medicaid and other tax issues. This means that you would give control of the Trust to the Trustee.

These are some pros and cons of an irrevocble trust:

"Many people shy away from the idea of creating an irrevocable trust because it means relinquishing ownership and control of the assets they've worked hard for all their lives. When you create an irrevocable trust, you literally give away everything you place into it, and you don't have the option of taking it back if you change your mind. However, you can still control what happens to the property going forward by writing provisions into your trust documents. Your trust documents control what your trustee does with the assets. You can state that certain heirs cannot receive windfalls at your death, but rather periodic payments, or that they should not inherit until they reach a certain age.

Income Considerations

If any of the assets you place in your irrevocable trust produce income, you don't necessarily have to lose that. You can draft your trust documents so that the trust pays that income to you. If creditors or vulnerability to civil judgments are concerns for you, this income -- and any assets that you don't transfer into the trust -- is vulnerable to loss in a lawsuit. Although the law varies among states, in most circumstances creditors and civil judgments can't reach the assets in your irrevocable trust. By the same token, neither can you.

Tax Considerations

One of the greatest advantages to giving ownership of your assets to an irrevocable trust is that they pass out of your estate. This isn't the case with a revocable type of trust, one in which you can still access the assets, make changes to the terms of the trust documents, or even dissolve the trust if you see fit. Assets in a revocable trust are still part of your estate and are subject to estate taxes when you die. Assets in an irrevocable trust are not. There is one drawback concerning life insurance, however. If you create and transfer a life insurance policy into your trust, it's with the assumption that you'll live at least three more years. If you don't, the proceeds revert to your estate at your death, and they're taxable.

Medicaid Issues

If you place your assets in a revocable trust, then suffer a serious health problem that requires a nursing home, federal Medicaid laws require that you take them back into your own ownership again, and use them to pay for your care. This isn't the case with an irrevocable trust. The very nature of the trust prevents you from taking the assets back, so they can still pass safely and intact to your beneficiaries. However, you can't fund an irrevocable trust and apply for Medicaid right away. Medicaid has a five-year "look back" period, during which time you can't transfer ownership of your assets to anyone else, including an irrevocable trust. If you require long-term hospitalization before five years have passed from the time you create your trust, you'll be ineligible for Medicaid for a period of time, which is calculated using the value of the assets you gave away." http://finance.zacks.com/pros-cons-irrevocable-trust-1837.html

A revocable trust provides fewer benefits but also avoids probate. If you divorce the court would take the trust into consideration but that would not necessarily dictate the outcome of the distribution of assets without post marital agreement. As far as splitting the property outright with his daughter it may be beneficial for you to hold onto to the property until the death of both spouses. I will need a little more information to give you some direction. As far as the son he can be specifically excluded from receiving anything under the trust if that is what both you and your spouse want.

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Customer reply replied 1 year ago
Thank you for your quick response. All these proceedings were quite unexpected from me and therefore it is hard to think how it will be beneficial to set up a trust. This is some of the option my husbands' attorney offers and I am not sure what would be beneficial for me
1. Set up a living trust for your property Transfer your property into the trust, including the Fidelity accounts and the Florida real property. You and Luba would be co-trustees of the trust while both of you are alive with capacity.
2. When you pass away, that would trigger certain events:
2a. An immediate distribution of a certain amount or percentage of your property is distributed to one or more of Luba, Stephanie, and Andrew.
2b. A certain percentage of your property is moved into a separate trust for the benefit of Stephanie. The trustee for that trust may be some combination of Luba, Stephanie, and/or a corporate trustee.
2c. The remainder of the property would remain in trust for Luba, with Luba as co-trustee with a corporate trustee, perhaps Fidelity Trust Department. Luba would be entitled to a certain amount every year, payable monthly or quarterly, such amount to be adjusted for inflation. Luba would also have access to the trust property under certain circumstances, such as for medical needs.
Customer reply replied 1 year ago
My questions will be :
1. After my husband approached me to set the account I am not sure what else he has in his mind. Therefore I would like to be sure that if we decide to divorce - all our assets are in the trust and I can be entitled on 50% of the all our assets.
2. My husband is 12 years senior than me and he might pass away earlier than me therefore I will have an option to split everything we have 50/50 with his daughter and continue to have monthly distribution from the trust - am not sure who determents how much I need, if I have extra expenses, could I keep my house - what will be the best option for me.
My husband wants to give my son only 20% of our assets

To be honest with you it deoends on the amount of you have and what protections you want in place. A revocable living trust basically avoids probate and places your real and personal property in the trust to be disbursed based on the terms. I am not sure what your situation is but the less the control of the trust the more protections you receive.

I often have people ask if they ever need nursing home care if they can still aplly for medicaid. The answer is yes if the property is in an irrevocable trust so ther is a way to qualify for medicaid without losing your trust assets.

You can easily set out what you agree to the event of a divorce with a post martital agreement. In Texas you are dealing with community property laws so it can be very helpful https://www.hg.org/article.asp?id=20181 It would also be helpful in separate property States like Florida. The living trust would not necessarily provide protection in the event of a divorce.

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My questions will be :
1. After my husband approached me to set the account I am not sure what else he has in his mind. Therefore I would like to be sure that if we decide to divorce - all our assets are in the trust and I can be entitled on 50% of the all our assets. It would be best to have an agreement. Texas is a community property State.

2. My husband is 12 years senior than me and he might pass away earlier than me therefore I will have an option to split everything we have 50/50 with his daughter and continue to have monthly distribution from the trust - am not sure who determents how much I need, if I have extra expenses, could I keep my house - what will be the best option for me. This is the law in Texas for children from a prior marriage. http://info.legalzoom.com/texas-laws-concerning-inheritance-husband-wife-22163.html

I completely understand your concerns.

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Customer reply replied 1 year ago
thank you and I see your points that without detailed information it is hard to provide a legal advice. I am still in the stage of shock of my husband's action but it is irrelevant. My husband does not have any non marital property or assets. Everything we currently have are earned by both of us.
Could you please explain me the following2. When you pass away, that would trigger certain events:
2a. An immediate distribution of a certain amount or percentage of your property is distributed to one or more of Luba, Stephanie, and Andrew - DOES IT MEAN THAT SOME MONEY WILL BE IMMEDIATELY GIVEN TO HIS DAUGHTER? AND MY SON? AND ME?
2b. A certain percentage of your property is moved into a separate trust for the benefit of Stephanie. The trustee for that trust may be some combination of Luba, Stephanie, and/or a corporate trustee. - DOES IT MEAN THAT ANOTHER TRUST WILL BE SET FOR HIS DAUGHTER?
2c. The remainder of the property would remain in trust for Luba, with Luba as co-trustee with a corporate trustee, perhaps Fidelity Trust Department. Luba would be entitled to a certain amount every year, payable monthly or quarterly, such amount to be adjusted for inflation. Luba would also have access to the trust property under certain circumstances, such as for medical needs. - OR IT SIMPLY 3 VARIOUS OPTIONS OF TRUST LIFE AFTER HIS DEATH?

Here is the law I meant to add with my link:

"Texas laws on inheritances are detailed, governing topics such as whether an inheritance you receive while you are married is considered community property and who inherits your property if you die without a valid will. In some cases, Texas law may distribute your property in a way you don’t want, so it is important to understand how these laws apply in your individual situation.

Receiving an Inheritance While Married

Texas categorizes property that is owned by a married couple as either community property or separate property. A court can divide community property in a divorce, giving a portion to each spouse, but separate property cannot be split in a divorce. Any property a spouse receives by gift or inheritance is separate property, regardless of when she received it. However, if the spouse who received the inheritance then commingles it with community property, it may become community property because it would be too difficult to separate from the community property. For example, if a wife receives a $10,000 inheritance and deposits it into the joint savings account she has with her husband, over time it may become impossible to determine where that money went.

Inheritance by Will

If you have a valid will that addresses all of your property, the terms of the will govern how your property will be distributed. Texas inheritance laws will not override the terms of your will. However, if you get a divorce but do not change your will, Texas law will void anything in your will that was in favor of your former spouse. If you want to leave anything to your former spouse, you must get a new will after your divorce.

Community Property to Spouse

If you die without a valid will, Texas laws on intestate succession will determine who inherits your property. If you are married but have no descendants other than descendants with your surviving spouse, Texas law says your community property will go to your spouse. For example, if you and your spouse have one child together and no other children, your spouse will inherit all of your community property if you die without a valid will.

Children from Another Relationship

If you are married and have descendants from another relationship, Texas law divides your community property in half if you do not have a will. Half of your community property will go to your spouse and half will go to your children from your other relationship. For example, if you die without a valid will while married to your second wife, any children from your first marriage would receive half of your community property while your second wife would inherit the other half.

Inheritance of Separate Property Without a Will

If you die without a will, Texas law will distribute your separate property differently than community property. Your separate real property — such as land — will be divided into two-thirds to your children and one-third to your spouse for the remainder of your spouse’s life. When your spouse dies, his third will go to your children. Your separate personal property — such as money or a vehicle — will be divided two-thirds to your children and one-third to your spouse."

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2. When you pass away, that would trigger certain events:
2a. An immediate distribution of a certain amount or percentage of your property is distributed to one or more of Luba, Stephanie, and Andrew - DOES IT MEAN THAT SOME MONEY WILL BE IMMEDIATELY GIVEN TO HIS DAUGHTER? AND MY SON? AND ME? That depends on the way the trust is worded.

2b. A certain percentage of your property is moved into a separate trust for the benefit of Stephanie. The trustee for that trust may be some combination of Luba, Stephanie, and/or a corporate trustee. - DOES IT MEAN THAT ANOTHER TRUST WILL BE SET FOR HIS DAUGHTER? If that is stated in the trust that would be the way this work out. Again the language is so important as it sets out exactly what is required to happen.

2c. The remainder of the property would remain in trust for Luba, with Luba as co-trustee with a corporate trustee, perhaps Fidelity Trust Department. Luba would be entitled to a certain amount every year, payable monthly or quarterly, such amount to be adjusted for inflation. Luba would also have access to the trust property under certain circumstances, such as for medical needs. That is what I read when you told me your husband's attorney's proposal above.

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I don't want you to give away any rights that you have. I would suggest sitting with your own local Attorney and explaining the situation and letting them know your concerns. Many Attorneys provide FREE consultations. Before you agree to anything you will want to go over the pros and cons and not agree to give up any of your rights. Where are you located in Texas so I can proivide a link for a local Attorney that provides FREE consultations?

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Customer reply replied 1 year ago
if you could provide me with any names I greatly appreciate it. Thank you for the information provided. I have learned already that my son can not be entitled on anything under the Texas Law. We are setting a living trust to avoid any issues with the probation. I am only 48 years old professional but with some significant medical issues (cancer) therefore I want to be sure that I will have a comfort living in case something happens with my husband. Could I please summarize the following benefiting me
1. Living trust will have both of us as trustees with equal rights
2. Upon the death of my husband I should agree on distribution rather than splitting the trust.
3. In case of divorce - our living trust will be split 50/50 because of the community property in Texas
Please advise and thank you so much again

In order to know what is best for you I would need a great deal of information. What I can do and it will be my pleasure to do is I can tell you what rights you have under the law:

"Texas law affords surviving spouses important rights and benefits. In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.

What if a Spouse Dies Without a Will?

  • INTESTATE. When an individual dies without a will, intestate succession law will govern. Under Texas law, a statutory framework determines how a decedent’s estate will be distributed. This is referred to as Intestate Administration.
  • INTESTATE SHARE. If a spouse dies without a Will, the surviving spouse receives an intestate share.
  • SHARE OF SURVIVING SPOUSE – NO CHILDREN. If the only survivor is a surviving spouse then the surviving spouse receives the entire estate of the decedent. The surviving spouse retains the one-half of the community property that the surviving spouse owned once the marriage was dissolved by death and inherits the deceased spouse’s one-half of the community property.
  • SHARE OF SURVIVING SPOUSE – No Non-Spousal Descendants. If all of the deceased spouse’s surviving descendants are also descendants of the surviving spouse, then the surviving spouse will own all of the community property, that is, the surviving spouse retains his or her one-half of the community and inherits the other half.
  • SHARE OF SURVIVING SPOUSE – Non-Spousal Descendants. If there are any descendants who survive the decedent and are not descendants of the surviving spouse, the decedent’s one-half interest in the community probate assets will pass to the decedent’s descendants per capita with right of representation.

Elective Share or Election Against a Will

Texas is a community property state. There is NO right of election. A surviving spouse owns one-half of the community interest without restrictions. See Tex. Fam. Code. 3.002. In the event the decedent attempted to dispose of more than his or her share of the community property by a will, the surviving spouse must then decide whether to take under the will as provided, or take his or her own property and forego the bequest.

Homestead Rights and Allowance

Article XVI, sec. 51 of the Texas Constitution who can receive homestead property upon the death of an owner if he or she is survived by a spouse or a minor child. A surviving spouse is entitled to no less than a life estate in any property used as a homestead by the deceased spouse in Texas. See Tex. Const. art XVI, sec. 52.

Exempt Property

The surviving spouse may claim exempt personal property or an allowance up to $5,000, in lieu of homestead, if the estate is insolvent.
Further, the surviving spouse may claim family allowance upon to one (1) year’s support. The will may alternatively provide for the surviving spouse to take property in lieu of the one year’s support.

Marital Agreements

  • MARITAL AGREEMENTS. Martial Agreements which are often referred to as prenuptial agreements, ante-nuptial agreements, and post-nuptial agreements, can waive or create rights upon the death of a spouse. It is imperative to have a lawyer review these agreements who is familiar with the probate process to properly address any rights you may have at death or as a surviving spouse. It is also important to have these documents properly reviewed by experienced probate lawyers to ensure any death time provisions are properly addressed prior to signing any of these agreements. Many of the rights of a surviving spouse can be waived or increased in properly drafted agreements. Tex. Fam. Code § 4.103" http://info.legalzoom.com/texas-laws-concerning-inheritance-husband-wife-22163.html

1. Living trust will have both of us as trustees with equal rights If that is the way it is set up, yes it will.
2. Upon the death of my husband I should agree on distribution rather than splitting the trust. That depends on what would be more beneficial for you based on your circumstames.
3. In case of divorce - our living trust will be split 50/50 because of the community property in Texas The living trust will not impact a divorce a postmarital agreement would do this.

Where in Texas are you located?

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As far as your son the aw states that "If you are married and have descendants from another relationship, Texas law divides your community property in half if you do not have a will. Half of your community property will go to your spouse and half will go to your children from your other relationship. For example, if you die without a valid will while married to your second wife, any children from your first marriage would receive half of your community property while your second wife would inherit the other half.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. If you would be kind enough to rate to rate my service positively so I will receive credit for my work I would appreciate it. You do not need to provide a negative rating for a refund.

Thank you for using JA!

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Customer reply replied 1 year ago
Are you a different attorney now?

No I am the same. Only the first Attorney opted out. I just need your location to provide a link for local Attorneys in your area that provide free consultations

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Customer reply replied 1 year ago
I am located in Houston

The first Attorney was Ely and he opted out.

OPT OUT: Ely opted out1 Dec 2016, 12:21 PM Give me one moment please to provide a link.
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This is a link for local Attorneys that provide FREE consultations http://lawyers.findlaw.com/lawyer/firm/estate-planning/houston/texas

The State Bar can also refer reputable Attorneys at https://www.texasbar.com/AM/Template.cfm?Section=Lawyer_Referral_Service_LRIS_

Thnak you so much for using JA! It was a pleasure working with you. The Attorneys do not receive credit for their work on the site if the customer does not rate us poitively, so I hope you were happy with my service. You do not need to provide a negative rating for a refund.

We appreciate you business!

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Customer reply replied 1 year ago
I am not sure your name but I greatly appreciated your assistance in this not very clear matter.
I will rate you very highly and thank you again for your time.
Luba wherry

You are most welcome Luba. I am Attorney2 (Leslie)

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Customer reply replied 1 year ago
Dear Leslie, thank you again and please let me know how I can finish the conversation.

Hopefully you can see the raying scale on your end. Some customers have reported issues.

You finish the conversation by rating above. Thank you.

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12,040 satisfied customers
I am the beneficiary of a life insurance policy and the
I am the beneficiary of a life insurance policy and the insurance company won't make the check out to me.they keep sending it to the estate of Don Sergott so the bank won't cash it. I called them and … read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
Named as beneficiary on life insurance and wondering if upon
Named as beneficiary on life insurance and wondering if upon award, one can reassign that benefit to someone else to receive the money with similar no tax benefit or can I only then give as a gift??… read more
lucy7368
lucy7368
Juris Doctor
763 satisfied customers

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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