casemark/revocable-living-trust

Revocable Living Trust

Drafts a revocable living trust preserving grantor control during lifetime with seamless asset transfer at death, tailored to applicable state law.

Prerequisites

Gather before drafting:

• Grantor(s) — full legal name, address, state of residence, marital status, individual vs. joint trust
• Beneficiaries — primary/contingent names, relationships, distribution preferences (per stirpes/per capita), minor age restrictions
• Assets — real property (legal descriptions, APNs), financial accounts, business interests, significant personal property
• Trustees — initial, successor (first/second/third), co-trustee arrangements, corporate trustee preferences
• Distribution plan — specific bequests, age-based schedules, outright vs. continued trust, spendthrift needs
• State requirements — execution formalities, community property vs. common law, applicable trust code

Document Sections

1. Declaration of Trust

Include: trust name (grantor name + year, e.g., "The John Smith 2026 Revocable Living Trust"), grantor full legal name and address, effective date, initial trustee (typically grantor; both spouses for joint trusts), trust type (individual/joint with explicit revocability statement), capacity statement, primary purposes (lifetime management + death distribution), governing jurisdiction.

2. Trust Property and Funding

Attach asset schedule as exhibit, organized by category: real property (legal description, APN, address), financial accounts (bank, brokerage, retirement — flag qualified plan restrictions), business interests (entity name, ownership %, type), personal property (vehicles, valuables), and future funding language permitting ongoing additions without formal amendment.

3. Trustee Provisions

Define succession chain (initial → first/second/third successor or corporate trustee). Address:

• Incapacity definition and physician certification standard
• Triggering conditions: death, resignation, incapacity, removal
• Co-trustee decision-making protocol (if applicable)
• Written acceptance requirement and bond waiver
• Corporate trustee authorization
• Resignation procedure and replacement mechanism

4. Beneficiary Designations and Distributions

Lifetime: Unrestricted income and principal to grantor.

Post-death: For each beneficiary, specify name, relationship, share percentage, distribution type (outright/in trust), and conditions (age triggers, etc.).

Include: per stirpes vs. per capita designation, specific bequests, minor provisions with age-based schedule (e.g., 1/3 at 25, 1/3 at 30, balance at 35), spendthrift clause, contingent/residuary beneficiaries, ultimate disposition if all predecease.

5. Revocation and Amendment

• Grantor retains absolute authority while living and competent
• Written, signed amendments; specify notarization/witness requirements per state
• Partial amendments or full restatement permitted
• Revocation returns all property to grantor
• Joint trust: specify consent requirements and first-death consequences (irrevocable vs. amendable by survivor)
• Trust becomes irrevocable at death or incapacity

6. Trustee Powers

Grant comprehensive authority across: investment (any asset class, retain originals, vote shares), management (sell, exchange, lease, mortgage), distribution (HEMS standard or broader discretionary — specify which), administrative (hire professionals, delegate, insurance, taxes, records), and special assets (business operations, rental property, IP).

Also address: prudent investor standard of care, compensation arrangements, liability/indemnification, removal provisions.

7. General Provisions

• Governing law (grantor's state of residence)
• Severability, no-contest/in terrorem clause
• Spendthrift provisions, tax allocation directives
• Defined terms: "issue," "descendants," "incapacity," "per stirpes"
• Accounting duty and waiver provisions
• Anti-merger provision (sole trustee + sole beneficiary)
• Trust situs, survivorship requirement (e.g., 30 days)

8. Execution

• Signature blocks for grantor(s) and trustee(s)
• Notarization (required in most states — verify state rules)
• Witness signatures if state requires
• Asset schedule exhibit attached (even if initially blank)
• Verify consistent trust name and cross-references throughout

Pitfalls

• State law controls — execution requirements, community property rules, trust code provisions, and permissible powers vary by state. Always confirm. Mark uncertain statutory citations with [VERIFY].
• Unfunded trusts are ineffective — emphasize funding schedule; provide retitling instructions.
• Coordinate with pour-over will — companion pour-over will captures assets not transferred during lifetime.
• Qualified plan limitations — retirement accounts cannot be retitled into a trust; trust can be named as beneficiary, but flag tax implications.
• HEMS vs. broad discretion — use HEMS for ascertainable standard (avoids estate inclusion for non-grantor trustees); broader discretion only where grantor is trustee or inclusion is acceptable.
• Joint trust considerations — delineate community vs. separate property in community property states; address A/B or disclaimer trust if tax planning is relevant.
• No tax advice — flag estate tax, GST tax, and income tax issues for CPA/tax counsel review.