Here is that personal injury trial attorney talking about “probate” and “testamentary documents again.” No, I don’t hold myself out as an “Eldercare Lawyer”. What I can tell you is that I understand, after 47 years of practicing law, the intersection between litigation and estate planning. Because I litigate- represent people who have been injured or killed through no fault of their own- I am familiar with the advantages and disadvantages of certain estate planning devices and documents. I have previously discussed the issues with Durable Powers of Attorney which are not drafted by attorneys who know the pitfalls of nursing home arbitration agreements. There are some major traps for the uninformed waiting there. I am starting this series to dispel myths that are being advertised and disseminated about estate planning and “probate”.
I routinely receive mailers for presentations for “Estate Planning Seminars “or “Retirement Planning Seminar” or other names. Recently, I received a report from a presentation to a church group about the information that was being presented. I’m starting this series because the “scare tactics” spewed in this presentation, along with others of which I’m aware, are simply wrong. Legally wrong. The series is to dispel the myths about “probate”. It’s a word the lawyers trying to a sell “trust”, which you probably don’t need, use to sell their wares. Very expensive wares.
Among other comments made by an attorney in this recent presentation was the “trusts protect your assets”. True up to a point. I had a client who has had an IRREVOCABLE trust for decades-for all of the right reasons-tell me that her trust will protect her assets from any personal liability, so she doesn’t need a lot of liability insurance. The Eldercare lawyers typically are selling REVOCABLE TRUSTS. Before paying thousands for forms, do your research.
Every State has statutes (laws) regulating trusts. In Kentucky, KRS 386B.5-040 (look it up) provides in part that “During the lifetime of the settlor, (person creating the trust), the property of a revocable trust is subject to claims of the settlor’s creditors”. The same statute provides access by creditors to the maximum amount that can be distributed to the settlor of an irrevocable trust.
There are places for trusts but shielding personal assets from creditors is not necessarily one of them. Next, we will dispel the myth about the “evils” of “probate”.
