A brief description of the wishes for distribution of property at death. Most married couples wish the bulk of their property to pass to their spouse outright or for his or her lifetime and then to pass to their mutual children in trust upon the death of the surviving spouse. The property would then be held in trust until the children reach the age of majority or beyond, with principal payments at specified ages.
It is advisable for the surviving spouse to serve as Personal Representative. If he or she does not wish to serve alone, another responsible person (possibly adult children or attorney) can normally serve with him or her.
A disinterested party must be appointed as trustee in order to make discretionary decisions regarding distributions without incurring adverse tax consequences. The surviving spouse or other family member may also serve, but would have limited authority.
Until minor children reach age 18, they must have a guardian appointed with respect to both their person and any property they may own individually. Usually the surviving parent is named Guardian of the property (a parent is automatically Guardian of the person). Some other person, preferably a related couple should be named in the alternative in the event neither parent survives. They can serve individually or jointly.
The grantor may serve as the initial Trustee of the Trust during his or her lifetime. (Where he or she is the shareholder of professional corporation stock which is to be transferred to the Trust, it is essential that he or she alone be the Trustee since an unlicensed professional is not legally authorized to own or hold title to such stock.) The other spouse should be named as successor Trustee to succeed to the duties of the Trustee in the event that the grantor shall predecease him or her. A disinterested successor Trustee should also be named. We suggest that this disinterested Trustee should be a close relative, a bank, or an attorney who is familiar with the affairs of the grantor.
Powers of Attorney are often used to authorize someone to act for you under certain legal conditions, especially legal incapacitation. We will recommend that you consider executing such power. Whom would you like to name as your agent (and Successor agent) under such power? There are two types of such power — a “Durable General Power of Attorney” and a “Durable Health Care Power of Attorney.” The General Power appoints an agent to act for you in connection with financial matters and to manage assets while the Health Care Power appoints an agent to make health care decisions for you in the event of incapacity. At our meeting, we will discuss with you if you would like an Advance Directive (Living Will) as a part of your Health Care Power.