Dear Marilyn,
One of my friends attended one of your humorous talks that you have given to many groups, and said you talked about “Bare Trusts” among other subjects. It is hard for me to get out of my home to attend any meetings. Could you please explain what this means? —Mrs. D.


Dear Mrs. D.,
First of all, I would like to say that “all Trusts are not created equal.” I have seen many Trusts that come from Trust mills. These are fill-in-the-blanks documents which often do not comply with existing law or are missing 50 to 100 essential provisions. These “bare” Trusts would very likely end up in Probate Court for clarification. This is exactly why you did a Trust to avoid the very expensive, aggravating and long lasting process of the Probate process to pass your property to your heirs.

The average time for probate in California is two and one-half years. The reason why you need a complete document, whether or not you think you have a simple situation, is that you not know what situation could arise with you personally, with your heirs or even unborn heirs. It is very, very important that you allow for any possible contingencies which could occur during the lifetimes of these individuals.

I saw a trust just last week that is one of the worst examples that I have seen in my 16 years as a California attorney. It was a 4-page Trust,double spaced with the notary section taking another page. Obviously in this type of document you cannot adequately cover some 130-150 provisions.

 Being a thick document is not always the answer either. I saw a rather “thick” trust done from a local attorney, that had the surviving spouse having a “comfortable” life style. Although you can live as comfortably as you want with a trust, it is very important that your trust have the language permitted by the Internal Revenue Code. The Internal Revenue attacked this language back in a case in 1991 and ruled that this was not an ascertainable (measurable standard—it was much too subjective). The person that showed me this trust called back the Attorney that had prepared it and questioned that individual about the document. The attorney had never heard of the case. Since it is a very well known l99l case, the Attorney has had 7 years to become informed. He or she should have contacted his or her clients and told them that they needed an amendment.

Obviously, I feel it important that a client should have a personal interview to determine what special situations exist and that appropriate language be drafted to allow for that particular person or couple. This is as important as the document itself. Sometimes assets such as personal property are left out of the trust-- or property is not held in the Trust as community property for a married couple. Unless very unusual circumstances exist, this is important for tax reasons.

So, you should bear in mind that it is important to deal with a legal professional --an Attorney who specializes in Estate Planning for your legal and financial health just as you would deal with a medical person (specialist -- as Cardiologist) for your medical health. You wouldn’t go to a podiatrist for your arrhythmia problem much less than the doctor’s assistant that lived next door and worked part-time on Tuesday afternoons giving shots to children.