You are free to define the scope of the estate-planning services you offer to your client. You can choose the level of involvement in funding the trust that you desire - from simply directing the client to contact us for assistance, to acting as notary for funding documents included in the binder, to following up to ensure the formal transfer occurs.
As you determine what level of funding assistance to provide keep in mind the following compliance guidelines:
- Your client is trustee of their living trust. As trustee they have a fiduciary responsibility to manage the affairs of the trust. Paramount among their on-going duties is to make sure trust is current and up-to-date at all times and that the trust is officially identified on title to their assets. Make sure the scope of funding assistance you offer does not remove the client's fiduciary obligation.
- Remind your client of their fiduciary responsibilities for keeping their trust funded whenever you meet with them. Documenting that such a "reminder" is part of your standard operating procedures during your annual review appointments helps to limit against any accusations that you neglected to assist with keeping the trust funded.
- Every time you meet with your client, inquire about the ownership of assets. Ask questions like, "Is everything you own included in your living trust? Have you acquired any new assets that I am not aware of since we last met?" Routinely asking these kinds of questions helps limit your liability, if at death any assets for are some reason not properly funded.
- For instructions on how to fund any specific asset, follow the detailed funding instructions provided. If you are confused or are not sure which funding documents to use, contact us immediately.
- Assets owned outside the trust are not controlled by the trust document. Unless instructed otherwise by legal counsel, the general rule is that titles to all assets are to be changed to show the client's trust as owner.
- Assets with named beneficiaries - insurance policies, IRA accounts, etc - do not need to be owned by the trust. Upon death assets with named beneficiaries pass outside the trust and the process of probate and are distributed directly to the individuals named as beneficiary.
- Ownership to real estate is evidenced by a deed. The legal description is a critical part of the deed. Check and double check to ensure that the legal description placed on the new deed is an exact replication of the legal description on the existing deed. If the legal description is lengthy it is often better to simply photo copy the legal description from the existing deed and attach it to new deed. Do not photo copy anything from the original deed but the legal description. If anything but the legal description is photocopied often the County Recorder 's office will return the deed for re-submission.